Dynamic Network Service, Inc.
DYN(SM) UPDATER LICENSE AGREEMENT (“License” or “Agreement”)
Version 2.1
(Last Updated November 14, 2011)
Note to user: In this document, “You” means the licensee of the Software and “Dyn” means Dynamic Network Services, Inc., the Licensor.
IMPORTANT–READ THESE TERMS CAREFULLY BEFORE DOWNLOADING THIS SOFTWARE. YOUR CLICKING ON THE ICON AT THE BUTTON MARKED “I AGREE” AND YOUR USE OF THIS SOFTWARE INDICATES YOUR ACKNOWLEDGEMENT THAT YOU HAVE READ THIS LICENSE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, PROMPTLY EXIT THIS PAGE WITHOUT DOWNLOADING THE SOFTWARE.
1. Use. Dyn grants You a personal, perpetual, terminable, non-exclusive, non-transferable license to use one copy of the software program with which this license is distributed (the “Software”) including any documentation accompanying the Software (“Documentation”) for use on only one computer, in accordance with the terms of this License. Additionally, You (a) may only use the Software in connection with the dynamic domain name system service or the InternetGuide(SM) service provided by Dyn; (b) may only use the Software in accordance with the terms of Abuse Update Policy, available at http://dyn.com/support/abuse/ and (c) shall not, under any circumstances, use the Software with a dynamic domain name system service provided by a third party, and you agree that such use constitutes a material breach of this agreement.
Further, You accept and agree that your use of the Software will result in the creation of IP Address information and DNS use, performance and routing information (“DNS Use Data”), and that Dyn shall (i) have the right, without further compensation to You, to retain and use the DNS Use Data to (a) improve the Software or any of the products or services it provides or (b) assist Dyn or its business partners in the development of current or future products or services and (ii) have the right to share aggregated and/or obfuscated DNS Use Data with its business partners or other third parties. Notwithstanding the above, nothing in this License grants Dyn the right to knowingly disclose any personally identifiable information to third parties unless required to do so in order to comply with any valid legal process, such as a search warrant, subpoena, statute, court order, or if necessary or appropriate to address an unlawful or harmful activity. Finally, You acknowledge and agree that the Software may from time to time automatically download and install Software updates, fixes, patches and enhancements.
2. Restrictions. You may use the Software only on a single computer (the “Designated Computer”). You may make one (1) copy of the Software for back-up or archival purposes only (the “Archival Copy”). If the Software is installed in a corporate or network environment it shall be used by no more than one (1) user unless a different number of authorized copies or users of the Software is provided for in a separate written agreement with Dyn. YOU MAY NOT: (a) copy the Software or accompanying documentation, except as provided above, (b) reverse engineer, disassemble, decompile, translate or adapt (for use with third party services or otherwise) the Software or Documentation, (c) modify, translate, distribute or prepare derivative works based on the Software or Documentation, or any part thereof; (d) remove any proprietary notices, labels, or marks on the Software or Documentation; (e) publish, display, disclose, distribute, rent, loan, lease, sublicense, transfer or make available all or any portion of the Software or Documentation to any other person or entity, or (f) use the Software or Documentation outside the country of acquisition. Distribution of this software via the Internet, wide area networks (WANs), bulletin board systems or any other means of distribution of any kind is expressly prohibited unless a duly authorized representative of Dyn consents in writing to such distribution. Any assignment of this Agreement or any of Your rights hereunder is strictly prohibited and shall be void.
3. Nature of rights. YOU HAVE NO OWNERSHIP RIGHTS IN THE SOFTWARE OR ANY DOCUMENTATION ASSOCIATED THEREWITH. RATHER, YOU HAVE A LICENSE TO USE THE SOFTWARE AND ANY ASSOCIATED DOCUMENTATION AS LONG AS THIS AGREEMENT REMAINS IN FULL FORCE AND EFFECT. THIS LICENSE IS NOT A SALE. TITLE, COPYRIGHTS, AND ALL OTHER OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SOFTWARE, ANY DOCUMENTATION ASSOCIATED THEREWITH AND ANY COPY OF THE SAME MADE BY YOU REMAIN WITH DYN AND/OR ITS LICENSORS. The Software and the Documentation, if any, contain material that is protected by United States copyright laws and trade secret laws, and by international treaties. All rights not granted to You herein are expressly reserved by Dyn. You may not remove any proprietary notices of Dyn from any copy of the Software or any Documentation associated therewith.
4. Confidentiality. The Software contains confidential and proprietary trade secrets of Dyn, and You may use the Software only pursuant to the license set forth herein. In addition, You shall not disclose the Software or Documentation, or any part thereof, to any third party.
5. Express Warranty. Dyn warrants to the licensee that the media furnished in this product will be free from defects in materials and workmanship under normal use until Dyn makes a new version of the Software available for download on its website. Your sole remedy under this express warranty is limited to replacement or repair of the Software, which shall occur at the sole discretion of Dyn. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
6. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY USE BY YOU OF THE SOFTWARE IS AT YOUR OWN RISK. THE SOFTWARE AND ANY DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. DYN EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, ALL OTHER WARRANTIES OF ANY KIND, BOTH EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ABSENCE OF LIEN, ENCUMBRANCE OR SECURITY INTEREST, QUIET ENJOYMENT, AND NON-INFRINGEMENT. DYN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND, EXCEPT AS OTHERWISE PROVIDED HEREIN, YOU (AND NOT DYN) ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR AND/OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. TO THE EXTENT THAT ANY IMPLIED WARRANTIES ARE DEEMED TO EXIST UNDER APPLICABLE LAW, THEY ARE HEREBY EXPRESSLY LIMITED IN DURATION TO THE DURATION OF ANY EXPRESS WRITTEN WARRANTY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7. LIMITATION OF REMEDIES. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL DYN, ITS AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES SHAREHOLDERS, REPRESENTATIVES OR AGENTS, OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, OR ESTATES, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOST DATA, LOSS OF BUSINESS INFORMATION, HARM TO REPUTATION, AND THE LIKE), OR ENHANCED, EXEMPLARY OR PUNITIVE DAMAGES, ARISING IN ANY WAY OUT OF OR CONNECTED WITH THE SOFTWARE OR DOCUMENTATION, OR THE POSSESSION, USE, INABILITY TO USE, OR MALFUNCTION OF THE SOFTWARE OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION DAMAGE TO PROPERTY AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DAMAGES FOR BODILY OR PERSONAL INJURY, EVEN IF DYN OR ANY DYN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. Termination of Agreement. If You breach any material term of this Agreement, the Agreement shall automatically terminate and You shall immediately, fully, completely and irretrievably remove the Software from the Designated Computer and immediately, fully, completely and irretrievably destroy all copies of the Software and Documentation, including the original and Your Archival Copy. All provisions relating to confidentiality, proprietary rights, and non-disclosure shall survive the termination of this Agreement.
9. United States Government End Users. The Software and any associated documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. You agree that when you license the Software for acquisition by the U.S. Government, or any sub-unit or contractor therefore, you will license it consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. §§ 227-7202-1 and 227-7202-4 (for the Department of Defense).
10. Dyn reserves all of its U.S. and international intellectual property rights relating to the Software that are not expressly granted within this Agreement.
11. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY AND ALL LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION ABOUT THE SOFTWARE THAT MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. YOU SHALL NOT EXPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE AND DOCUMENTATION, WITHOUT CONSENT OF DYN AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
12. Governing Law. This Agreement shall be governed by the laws of the State of New Hampshire without regard to its conflicts of law provisions. Neither the Uniform Computer Information Transaction Act (“UCITA”) nor the provisions of the United Nations Convention on the International Sale of Goods shall apply to this Agreement. Any dispute arising under this agreement shall be resolved exclusively by the state and federal courts located in the State of New Hampshire, and You hereby consent to the exclusive personal jurisdiction of, and venue in, such courts.
13. Severability. If any provision of this Agreement are determined by a court to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of the relevant agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct and the parties shall use their best efforts to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant agreement to as closely as possible achieve the intention of the parties had the stricken provision remained.
14. Entire License and Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may not be waived or modified except in writing by a duly authorized Dyn representative.
Dynamic Network Services, Inc.
150 Dow Street, Tower Two
Manchester, NH 03101
Telephone: 603-668-4998
Fax: 603-668-6474