Electronic Products License Agreement

Electronic Products License Agreement

Electronic Products License Agreement

INTERNATIONAL CODE COUNCIL, INC.
ELECTRONIC PRODUCTS LICENSE AGREEMENT

Effective Date: June, 2012

IMPORTANT NOTICE: THIS AGREEMENTS IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION VIII(C) BELOW

I. INTRODUCTION

This Electronic Products License Agreement (“Agreement”) governs your use of electronic versions of model, international, state, city and county codes and amendments, standards commentaries, translations, digital books, recordings of code hearings, and references and other written materials (collectively, “Electronic Products”) that are provided by the International Code Council, Inc. and its licensors (collectively, “ICC”). When you download an Electronic Product, access or load on to your computer or device an Electronic Product from a CD-ROM, the Internet or other electronic media, or otherwise use or access an Electronic Product in any manner, you agree to the terms of this Agreement.  You also represent that you and all of your authorized users are of the legal age of majority in your state or jurisdiction of residence and, if applicable, you are authorized by your employer to enter into this Agreement on your employer’s behalf. Please read this Agreement carefully. If you do not agree to abide by the terms in this Agreement, you may not use or access any Electronic Product.

II. COPYRIGHT AND INTELLECTUAL PROPERTY

ICC and its licensors are the exclusive owners of all Electronic Products and reserve all rights in Electronic Products not expressly granted herein.  Electronic Products are the exclusive property of ICC or its licensors and are protected by United States and international copyright and other laws. All content included in the Electronic Products, including without limitation, text, graphics, logos, button icons, images, interfaces, look and feel, navigation schemes, designs, formatting, arrangement, selection, compilation, and features, are the sole and exclusive property of ICC or its licensors.

III. GRANT AND SCOPE OF LICENSE

Under this Agreement, ICC grants and you accept a license to access and use different types of Electronic Products as set forth below, solely for the lawful purposes for which they are intended to be used.  All licenses granted under this Agreement are for your exclusive benefit and may not be assigned, rented, leased, sold, redistributed, sublicensed or otherwise transferred or shared by you.  Except as expressly permitted by this Agreement, you may not copy, sell (or participate in any sale), create derivative works of, merge, adapt, publish, publicly display, broadcast, perform, reverse engineer, disassemble, decompile, attempt to derive the source code of, modify, remove any proprietary notices, labels or marks from, or otherwise modify in any way any Electronic Product or any amendments or translations of any Electronic Product.   ICC may terminate any license granted under this Agreement if you violate any terms or conditions hereof.  Upon termination of any license granted under this Agreement, you must return to ICC or destroy the original and any copies of all Electronic Products.

A. Single User Electronic Products

ICC single user Electronic Products include:  PDF downloads, code hearing downloads, iQuest single user CD-ROMs, eCodes Premium single user, and other products that are identified as intended for a single user. For all single user Electronic Products, ICC grants and you accept a non-exclusive, non-transferable, limited and revocable single seat license to download and access the Electronic Product to a single computer or device using the identification and password information provided to you by ICC.  For single user Electronic Products, you are permitted to make one back-up copy of the applicable licensed Electronic Product.  Single user Electronic Products are intended and licensed for use by only one authorized user.

B. Multiple User Electronic Products

ICC multiple user Electronic Products include: eCodes Premium Multiple User Subscriptions, PDF CDs, iQuest multiple user CD-ROMs and other multiple user products that are identified as intended for multiple installation (e.g., 5 seats, 10 seats, etc.). For all multiple user Electronic Products, ICC grants and you and any authorized users in your company or organization accept a non-exclusive, non-transferrable, limited and revocable license to download and access the Electronic Product on the applicable number of computers or devices using the identification and password provided to you by ICC. Each multiple user Electronic Product will identify the number of authorized users that may access and use the Electronic Product on their computers or devices  For any multiple user Electronic Products that are downloaded to your network and not to individual computers or devices, you may only allow the applicable number of authorized network users associated with  the  licensed Electronic Product   to access and use the Electronic Product via the network. For example, if you purchase an Electronic Product for installation on your network with rights for 5 users, you may only allow 5 users to access the Electronic Product via the network at any given time.   You will be responsible for ensuring that each authorized user has read and agreed to this Agreement. An authorized user may not make an Electronic Product available electronically to anyone other than another authorized user in any fashion.  You will provide ICC, upon request, the names and physical and email addresses of each authorized user.

IV. THIRD PARTY MATERIALS

In order to access and use an Electronic Product, you may need to download or otherwise obtain access to certain materials that are provided by third parties (“Third Party Materials”). For example, many Electronic Products are protected from duplication by a product called protectedPDF™ and require Adobe® Reader® 8.0 or later to read.  Third Party Materials may be licensed to you subject to the terms and conditions of the software license agreements accompanying such Third Party Materials. Use of such materials by you is governed entirely by the terms and conditions of the applicable Third Party Materials license agreements and not by this Agreement.

By using any Electronic Product, you acknowledge and agree that ICC is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of any Third Party Materials. ICC does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Materials or for any other materials, products, or services of third parties. Third Party Materials are provided solely as a convenience to you.

V. MONITORING

ICC has the right to monitor the use of its Electronic Products to determine compliance with this Agreement, and/or to comply with any law, regulation or authorized law enforcement, regulator or government request.

VI. DISCLAIMER OF WARRANTY; EXCLUSIVE REMEDY

USE OF THE ELECTRONIC PRODUCTS AND ANY SOFTWARE USED TO ACCESS OR VIEW THE ELECTRONIC PRODUCTS IS AT YOUR OWN RISK. EXCEPT AS PROVIDED HEREIN, ICC AND ITS LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH YOU. ICC AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES INCLUDING ANY WARRANTIES OF MERCHANTABILITY, MARKETABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTIES FOR ALL ELECTRONIC PRODUCTS AND ANY SOFTWARE USED TO ACCESS OR VIEW ANY ELECTRONIC PRODUCT. ALL ELECTRONIC PRODUCTS AND ANY SOFTWARE USED TO ACCESS OR VIEW ANY ELECTRONIC PRODUCT IS PROVIDED "AS IS" WITH ALL FAULTS.

IF, UNDER NORMAL USE, ANY PHYSICAL DEFECTS ARE FOUND IN AN ELECTRONIC PRODUCT OR THE SOFTWARE USED TO ACCESS OR VIEW AN ELECTRONIC PRODUCT DURING THE FIRST 30 DAYS AFTER DELIVERY, YOUR SOLE REMEDY, AND ICC'S EXCLUSIVE OBLIGATION, IS REPLACEMENT OF THE DEFECTIVE ITEM WITHOUT CHARGE.

THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES IN CERTAIN TRANSACTIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

THIS DISCLAIMER OF WARRANTY AND THE REMEDY FOR PHYSICAL DEFECTS IN AN ELECTRONIC PRODUCT OR SOFTWARE SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, EXPRESSED OR IMPLIED. NO DISTRIBUTOR, LICENSOR, AGENT, REPRESENTATIVE, RESELLER OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION, EXTENSION OR ADDITION TO THIS WARRANTY AND REMEDY.

VII. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, AND EXCEPT AS EXPRESSLY PROVIDED ABOVE, ICC, ITS LICENSORS, AND SUPPLIERS, AND ANY OTHER CONTENT PROVIDERS, WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY RELATED TO THE LICENSE AND USE OF ANY ELECTRONIC PRODUCT. THIS LIMITATION OF LIABILITY INCLUDES, WITHOUT LIMITATION, ANY DAMAGES ARISING OUT OF LOSS OF PROFITS, REVENUE, DATA, OR USE OF ANY ELECTRONIC PRODUCT, SOFTWARE USED TO ACCESS OR VIEW ANY ELECTRONIC PRODUCT OR ANY ASSOCIATED PRODUCT OR SERVICE, EVEN IF ICC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN CERTAIN TRANSACTIONS, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.

In no event shall ICC’S total liability to you for all damages in connection with any Electronic Product (other than as may be required by applicable law in cases involving personal injury) exceed the amount you actually paid for such Electronic Product. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

VIII. GENERAL

A. International Users and Export Regulations

If you access or use an Electronic Product from a location outside the United States, you are responsible for compliance with all local and international laws. You agree that you will not use the Electronic Products in any country or jurisdiction or in any manner prohibited by United States export control laws or any other applicable laws, restrictions or regulations. You agree to comply with all applicable export and re-export restrictions and regulations, and you will not transfer or authorize, assist or encourage the transfer of any Electronic Product to a prohibited country.

B. Governing Law

The laws of the State of California, excluding its conflicts of laws principles, govern this Agreement and any disputes that may arise between you and ICC concerning this Agreement. Please note that your conduct may also be subject to other local, state, national, and international laws. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement or to any dispute or transaction arising out of this Agreement.

C. Disputes: Mandatory Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS

1. Federal Arbitration Act. The parties agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

2. Initial Dispute Resolution. Most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with ICC, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. To commence this procedure, you agree to contact ICC’s support department at 888-ICC-SAFE (888-422-7233), or ICC may contact you using the last available information it has for you.

3. Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then the parties agree to resolve by arbitration subject to the terms herein. Specifically, all claims arising out of or relating to this Agreement (including its formation, performance, and breach), the parties’ relationship with each other, and/or your download of, access to, or use of the Electronic Products shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, you must do the following: (A) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover. You may find a copy of a Demand for Arbitration at jamsadr.com; (B) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 620 Eighth Ave. (NY Times Building), 34th Floor, New York, NY 10018; and (C) Send one copy of the Demand for Arbitration to us at 500 New Jersey Avenue, NW, 6th Floor, Washington, DC 20001.

To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit in a court of applicable jurisdiction where you live, we will pay the difference between the applicable court filing and the arbitration filing fee.  The arbitration rules also permit you to recover attorney's fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

If you are a resident of the United States, arbitration may take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in the District of Columbia, United States of America, and you and we agree to submit to the personal jurisdiction of any federal or state court in the District of Columbia, United States of America in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

4. Class Action Waiver.The parties further agree that the resolution of any disputes between the parties shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND ICC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

A. Exception: Litigation of Intellectual Property, Injunctive Relief and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through initial dispute resolution or binding arbitration, either party may bring an action in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction. Further, to extent that a breach of this Agreement may cause irreparable injury to ICC for which monetary damages would not be an adequate remedy, ICC shall be entitled to seek equitable relief from a court of competent jurisdiction without a bond, other security or proof of damage.

B. 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to marketing@iccsafe.org with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your first download of, access to, or use of the Electronic Products, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, we also will not be bound by them.

C. Changes to this Section. ICC will provide 30-days' notice of any changes to this section. Changes will become effective on the 30th day, and will apply prospectively only to any claims arising after the 30th. If a court or arbitrator decides that this subsection on “Changes to this Section” is not enforceable or valid, then this subsection shall be severed from the Section entitled Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Arbitration and Class Action Waiver (or similarly named) section in existence after you first downloaded, accessed, or used the Application.

D. Severability and Survival

If any provision of this Agreement is illegal or unenforceable under applicable law, such provision shall be amended to achieve as closely as possible the effect of the original provision and all other provisions of this Agreement shall continue in full force and effect.

E. Entire Agreement

This Agreement constitutes the entire agreement between you and ICC with respect to your license and use of any Electronic Product, and supersedes all prior or contemporaneous understandings regarding such subject matter. Subject to section VIII(I), below, no amendment to, modification of, or waiver of any term of or right under this Agreement will be binding unless made in writing and signed by an authorized officer of ICC. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this Agreement and any other applicable purchase, license or other terms communicated or set forth in connection with any Electronic Product licensed hereunder, the terms of this Agreement shall govern.

F. Limitation of Liability and Disclaimer of Warranties are Essential Terms of this Agreement

You agree that the provisions in this Agreement that limit liability and disclaim warranties are essential terms of this Agreement.

G. Compliance with Law

You will access and use any Electronic Product only for lawful purposes. This means that you will not use any Electronic Product to directly or indirectly violate any applicable law, rule or regulation or use any Electronic Product in any manner that would promote, aid or abet the violation of any applicable law, rule or regulation.

H. Modification of Agreement

In ICC’s sole discretion, it may unilaterally amend or modify this Agreement by posting the revised terms on the ICC website at www.iccsafe.org/electronic-products-license-agreement/. The date of the most recent revision of the terms will appear at the top of this page. If ICC has a current and working email contact for you and the changes to the terms are material, ICC may notify you of such changes by sending an email to the address you have provided to ICC.  ICC encourages you to review these terms periodically for any updates or changes.  Any non-material amended or updated terms will be effective upon posting. Your continued use of any Electronic Product after the effective date of any modified terms constitutes your agreement to comply with such modified terms.

I. Contact Information

If you have any questions concerning this agreement, please send an email to license@iccsafe.org.

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