Swype Connect is a service which enables Nuance to provide certain services to You from Nuance servers, and for Nuance to receive communications and data from the device on which the Swype Platform is installed. In consideration for Your consent to provide Nuance with various License Data and Usage Data, as defined below, while using Swype Connect, Nuance may make available updates, upgrades, additional languages, or add-ons ("Software") to the Swype Platform software installed on Your device. The following general terms and conditions govern Your use of Swype Connect and permit You to download, install and use the Software, as defined below, and any accompanying documentation, as may be provided by Nuance under Swype Connect.
1. LICENSE GRANT. Nuance grants You (the "Licensee" or "You"), a non-exclusive, non-transferable, non-sublicensable, revocable limited license, in object code form only, to install and use the Software on a single device for Your personal use. You may install and use the Software only if You have a validly licensed existing version of the Swype Platform software being updated, or upgraded. You may install and use any additional language or add-on made available to You through Swype Connect solely with the Swype Platform software.
2. RESTRICTIONS. You may not (except as permitted by law): (a) use the Software other than for Your own personal use; (b) copy, reproduce, distribute, or in any other manner duplicate the Software, in whole or in part; (c) sell, lease, license, sublicense, distribute, assign, transfer or otherwise grant any rights in the Software, in whole or in part; (d) modify, port, translate, or create derivative works of the Software; (e) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms, of the Software by any means; (f) remove any proprietary notices, labels or marks from the Software; or (g) use the Software for purposes of comparison with or benchmarking against products made available by third parties.
3. PROPRIETARY RIGHTS.
3.1. SOFTWARE. Nuance and its licensors own all right, title, and interest in the Software including, but not limited to, all patent, copyright, trade secret, trademark and other intellectual property rights associated therewith, and all title to such rights shall remain solely in Nuance and/or its licensors. Unauthorized copying of the Software or failure to comply with the above restrictions, will result in automatic termination of this Agreement and all licenses granted hereunder, and will make available to Nuance all legal and equitable remedies for breach thereof.
3.2. THIRD PARTY SOFTWARE. The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at: http://beta.swype.com/android/create/terms_use.html and are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, You are also accepting the additional terms and conditions, if any, set forth therein..
3.3. LICENSING AND USAGE DATA.
(a) LICENSING DATA. As part of Your use of the Software, Nuance collects and uses Licensing Data, as defined below, to validate Your license to the Software, as well as to develop, build and improve its products and services. In accepting the terms and conditions of this Agreement, You acknowledge, consent and agree that Nuance may collect and use Licensing Data as part of Your use of the Software, and that such Licensing Data shall only be used by Nuance or third parties acting under the direction of Nuance, pursuant to confidentiality agreements, to validate Your license to the Software, as well as to develop, build and improve Swype Connect, the Software, and its other products and services. "Licensing Data" means information about the Software and Your device, for example: device brand, model number, display, device ID, IP address, and similar data.
(b) USAGE DATA Additionally, as part of Your use of the Software, Nuance collects and uses Usage Data, as defined below, to develop, build and improve its products and services. You allow Nuance to collect and use Usage Data by enabling the Software. You may elect at any time to prohibit Nuance from collecting Usage Data, via the settings in the Software, at which point Nuance will discontinue collecting Usage Data from You. In accepting the terms and conditions of this Agreement, You acknowledge, consent and agree that Nuance may collect the Usage Data as part of Your use of the Software, and that such Usage Data shall only be used by Nuance or third parties acting under the direction of Nuance, pursuant to confidentiality agreements, to develop, build and improve Swype Connect, the Software, and other Nuance products and services. Nuance will not use the information elements in any Usage Data for any purpose except as set forth above. Usage Data is considered non-personal information, as such data is in a form that does not permit direct association with any specific individual. "Usage Data" means information about the Software and how You use the Software. For example: setting changes, device location, language selection, character trace paths, total number of characters tapped or swiped, speed of text entry, and similar data.
(c) You understand that through Your acceptance of this Agreement, You consent to the collection and use as set forth herein of License Data and Usage Data, including the transfer of both to the United States and/or other countries for storage, processing and use by Nuance and authorized third parties.
4. DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT NUANCE PROVIDES SWYPE CONNECT AND THE SOFTWARE "AS IS," WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. CONSEQUENTLY, YOU AGREE TO TAKE ALL PRECAUTIONS AND SAFEGUARDS NECESSARY TO PROTECT YOUR DATA AND SYSTEMS FROM LOSS OR DAMAGE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NUANCE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
5. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NUANCE, ITS OFFICERS, DIRECTORS, AND EMPLOYEES, OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, OR COST OF COVER, ARISING FROM THE USE OF SWYPE CONNECT OR THE SOFTWARE, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OR WHERE IT SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
6. TERM AND TERMINATION. This Agreement begins on Your acceptance of the terms and conditions of this Agreement and expires upon termination. This Agreement shall terminate automatically upon the breach of any of its terms and conditions by You. Upon termination, You shall immediately stop use of, and shall delete all copies of the Software and cease using Swype Connect.
7. EXPORT COMPLIANCE. You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
8. U.S. GOVERNMENT END USERS. The Software is a "commercial item," as that term is defined in 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth herein.
9. TRADEMARKS. Third-party trademarks, trade names, product names and logos (the "Trademarks") contained in or used by Swype Connect or the Software are the trademarks or registered trademarks of their respective owners, and the use of such Trademarks shall inure to the benefit of the trademark owner. The use of such Trademarks is intended to denote interoperability and does not constitute: (i) an affiliation by Nuance with such company, or (ii) an endorsement or approval of such company of Nuance and its products or services.
10. GOVERNING LAW. This Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws specified below, and the parties agree shall be subject to the exclusive jurisdiction of the applicable courts specified below:
(a) If your principal place/country location is a country within United States, Canada, Mexico, Central America, and South America: governing law shall be Commonwealth of Massachusetts and all applicable federal laws of the United States of America, with exclusive jurisdiction in the Commonwealth of Massachusetts, United States of America.
(b) If your principal place/country location is a country within the European Economic Area (EEA), Europe, the Middle East or Africa, or Russia: governing law shall be Ireland, with exclusive jurisdiction in Dublin.
(c) If your principal place/country location is a country within the Asia Pacific Economic Cooperation (APEC) (excluding Russia, the United State of America and Canada): governing law and exclusive jurisdiction shall be State of New South Wales, Australia.
(d) For all other countries: governing law shall be Commonwealth of Massachusetts and all applicable federal laws of the United States of America, with exclusive jurisdiction in the Commonwealth of Massachusetts, United States of America.
11. TERMS SUBJECT TO CHANGE. You acknowledge and agree that Nuance may change the terms and conditions of this Agreement from time to time upon reasonable notice provide to You on Your device. If You do not agree to such changes in this Agreement, Your only remedy is to cease access to Swype Connect, including but not limited to downloading and installing any Software.
12. GENERAL LEGAL TERMS. You may not assign or otherwise transfer any rights or obligations under this Agreement without Nuance's prior written consent. This Agreement is the entire agreement between Nuance and You, and supersedes any other communications or advertising with respect to Swype Connect and the Software. If any provision of this Agreement is held invalid or unenforceable, such provision shall be revised solely to the extent necessary to cure the invalidity or unenforceability, and the remainder of this Agreement shall continue in full force and effect. The failure of Nuance to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Sections 2, 3, 4, 5, 6, 8, 9, 10 and 12 of this Agreement shall survive the expiration or termination of this Agreement.