BBPark BButterfly SOFTWARE ' CLICK WRAP ' LICENSE AGREEMENT
ATTENTION - TO BE READ CAREFULLY BEFORE DOWNLOADING THE BBPark BButterfly
Please read this license agreement carefully before downloading the Licensed
Software or using any elements of the Licensed Software.
IF YOU CLICK THE 'ACCEPT' BUTTON OR IF YOU PROCEED TO USE ANY OR ALL ELEMENTS OF
THE LICENSED SOFTWARE, AS DEFINED BELOW, YOU SIGNIFY THAT YOU AGREE TO ALL OF
THE FOLLOWING TERMS AND CONDITIONS WITH RESPECT TO ALL THE LICENSED SOFTWARE,
AND THEREBY ENTER A BINDING AGREEMENT BETWEEN YOU ('LICENSEE') AND BBPark.
REGARDING USE OF THE LICENSED SOFTWARE. IF YOU DO NOT AGREE TO THESE
TERMS AND CONDITIONS, CLICK THE 'CANCEL' BUTTON.
This agreement shall automatically enter into force as soon as you have validated
it electronically or used any or all elements of the Licensed Software.
BBPark invites you to print out this agreement and conserve a copy for your records.
REMINDER: RESALE OR TRANSFER OF 3D Butterfly MODELS GENERATED BY THE BBUTTERFLY TO
A THIRD PARTY IS SUBJECT TO CONCLUSION OF A SEPARATE LICENSE AGREEMENT WITH BBPark.
1.1 'Licensed Software' shall mean any and all of the elements of the
BBPark BButterfly Software, including the Butterfly Data Files,
the 3D Models, the resulting Images, and any related documentation.
1.2 'Butterfly Data Files' shall mean the database of virtual seeds
holding each butterfly's genetic information which is interpreted by
the BButterfly and rendered in three dimensions.
1.3 '3D Models' shall mean the files of butterfly images or three
dimensional digital coordinates created by the BButterfly.
1.4 'Images' shall mean any non-virtual rendering of the Butterflies
that is generated by the BButterfly and that may be reproduced on paper
or in a variety of electronic formats.
1.5 'Error' shall mean an anomaly that prevents the Licensed Software
from performing substantially in accordance with its specifications
but shall not include a fault causing minor or trivial deviations from
1.6 'Qualified Educational Institution' shall mean a school,
adult education center, or technical or vocational school.
2. License Grant: BBPark hereby grants you, a non-exclusive,
non-transferable, non-sublicensable right to use and operate
the BButterfly and the Butterfly Data Files, to copy and modify
the 3D Models and the related Images in the creation and presentation
of virtual 3D environments and visualization for the applicable
duration of legal protection, subject to the following conditions:
2.1 you may install the BButterfly, the Butterfly Data Files, the 3D Models
and the Images on an unlimited number of CPUs, provided that all such CPUs
are physically located at a single specific geographical address, and
provided that you use the BButterfly (r) Software on a single computer at a time;
2.2 you may access the Licensed Software, including 3D Models and the Images,
only at that specific address;
2.3 you may not separately publish, distribute, or transfer the Licensed Software
including the 3D Models to another site or to a third party, except that you may
publish, distribute, or transfer the related Images to another site or to a third
party providing it is incorporated into and made part of your own final and single
2.4 you may not print the 3D Models or the Images or have them printed except for
an accessory purpose such as sales support to your primary use of the 3D Models
or your use of the Images incorporated into your own product;
2.5 you may not reverse engineer, decompile, or disassemble the Licensed Software;
2.6 you may not adapt, translate, rent, lease, loan or assign the
Licensed Software or use it in a facilities management, service bureau
or timesharing environment;
2.7 you may not reproduce the 3D Models in a way that would be similar or
equivalent to a publishing or distribution on a commercial scale of the
3D Models and/or Images without BBPark' express consent and payment of the
relevant publishing fee to BBPark;
2.8 you may make one copy of the Licensed Software for back-up or archival
purposes, so long as that copy remains in your possession or control;
2.9 you may not use or reproduce the Licensed Software or any of its elements
(by way of example, the output files or 3D Models of butterfly generated by
the BButterfly) to produce one of your own products, or in a commercial
context; except that you may copy and modify any 3D Models to incorporate
them into your own products for internal use on the computer or servers
on which the Licensed Software was first installed;
2.10 BBPark reserves the exclusive right to modify the Licensed Software or any
of its elements, to correct, adapt and/or make any upgrade of it;
2.11 you may not distribute or use publicly or in respect of third parties, any
video sequences compressed with the Licensed Software without the prior written
agreement of BBPark;
2.12 you may not use the Licensed Software or any of its elements otherwise than
in accordance with the provisions of this agreement, without first having obtained
an appropriate license agreement from BBPark;
2.13 The terms and conditions of this License Agreement and any further written
agreement related hereto will be automatically extended to any additional
Butterfly files ordered by you and subject to the prior effective payment of
the relevant license fee to BBPark.
3. Ownership: Title, ownership rights, and intellectual property rights in and
to the Software as well as any and all design rights, trademarks or other
intellectual property rights will remain in BBPark and are protected by China
copyright laws as well as international agreements. There is no transfer to
you of any title to or ownership of the Software and this License should not
be construed as a sale of any right in the Software.
4. No Warranty:
BBPark provides the Software 'as-is', and without warranty of any type.
BBPark DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT
LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, OR COMPATIBILITY) CONCERNING THIS SOFTWARE AND ITS
ACCOMPANYING WRITTEN MATERIALS.
Some jurisdictions do not allow limitations on an implied warranty, so the above
limitation may not apply to you.
5. Limitation of Liability:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BBPark DISCLAIMS ANY
WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
TITLE, NON-INFRINGEMENT, OR COMPATIBILITY WITH PARTICULAR THIRD PARTY PRODUCTS.
In no event will BBPark, its affiliated companies, or any of its licensors,
directors, officers, or employees be liable to you for any consequential,
incidental, indirect or special damages whatsoever, including without
limitation, any damages for downtime, loss of data or information,
loss of profits or business opportunity, whether foreseeable or unforeseeable,
arising out of (1) the use or inability to use the Licensed Software or
accompanying documentation; (2) your failure to respect its suggestions or
recommendations concerning the Licensed Software and for non-complying parameters,
or (3) your computer's, the Internet's or any other network's failure to operate.
The foregoing limitations shall apply, regardless of the basis of the claim, and
even if BBPark has been advised of the possibility of such damages.
BBPark' ENTIRE LIABILITY FOR ANY DIRECT DAMAGES BASED ON ANY CAUSE WHATSOEVER,
AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO THE TOTAL AMOUNTS
WHICH YOU HAVE PAID FOR THE LICENSED SOFTWARE HEREUNDER.
6. Infringement Indemnification:
6.1 BBPark will defend or settle at its option and expense, any action brought against
you by a third party to the extent it is based on a claim that the Licensed Software
infringes any copyright of a third party or misappropriates a third party's trade
secrets. Subject to the provisions of Section 5 above, BBPark will pay all damages,
costs and expenses (including reasonable attorneys' fees) awarded in a final, non
appealable court decision, in such a suit against you, provided that you
(i) notify BBPark promptly in writing of the action;
(ii) provide BBPark with reasonable information and assistance for the defense
or settlement of the action;
(iii) grant BBPark sole authority and control of the defense or settlement of
You shall have no authority to settle any action on BBPark' behalf, and no costs
or expenses shall be incurred for the account of BBPark without BBPark' prior
(a) Should the Licensed Software become, or in BBPark' opinion, be likely to
become the subject of claim of such an infringement, BBPark may, at its
option and expense, either
(i) procure for you the right to continue to use the Licensed Software,
(ii) replace or modify the Licensed Software to make it noninfringing,
if neither of the foregoing alternatives is reasonably available,
(iii) accept the return of the Licensed Software (or the infringing part
thereof) and refund to you the purchase price or license fee paid
under this Agreement.
(b) BBPark shall have no liability to you to the extent that the infringement
or claim thereof is based upon
(i) use of the Licensed Software in combination with other products,
devices or software which are not furnished to you by BBPark,
including those products, devices or software incorporated by
you and believed by BBPark to add substantial value to the Licensed Software;
(ii) modification of the Licensed Software by a party other than BBPark;
(iii) use of the Licensed Software as part of any infringing process;
(iv) use of other than a current, unaltered release of Licensed Software is
such infringement would have been avoided by use of the current, unaltered release.
(c) THIS SECTION 6 STATES BBPark' ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE
REMEDY CONCERNING INFRINGEMENTS OR ALLEGED INFRINGEMENTS BY THE LICENSED
SOFTWARE OR ANY PART OF THE LICENSED SOFTWARE OR THE LICENSED SOFTWARE'S USE
OR OPERATION AND ITS PROVISIONS ARE SUBJECT TO THE LIMITATIONS SET FORTH UNDER
SECTION 5 ABOVE.
6.2 Trademarks and Copyright Notices. You agree not to remove, deface or obscure any
trademark or copyright notices of BBPark contained in the Licensed Software.
7.1 Term. The term of this Agreement shall be the duration of legal protection
of the Licensed Software, unless terminated earlier in accordance with the terms
of this paragraph.
7.2 BBPark shall have the right to terminate this Agreement prior to its expiration
upon the occurrence of any of the following events, by sending a termination notice
to you by registered mail with acknowledgement or receipt, without any further
formalities (including any court appearance) being required:
(a) your failure to observe any other terms and conditions of this Agreement,
which failure is not cured within thirty (30) days of written notice thereof;
(b) your insolvency or commencing any act of bankruptcy or upon any proceeding
being commenced by or against you under any law having to do with your relief
as a debtor;
(c) substantial change in the management, ownership or control of your business,
including ceasing to do business, whether voluntary, by operation of law or otherwise.
(d) overtaking directly or indirectly at BBPark sole discretion, of your business
by a direct or indirect competitor of BBPark.
7.3 Upon termination or expiration of this Agreement, you shall immediately
return, at your expense, to BBPark, all copies of the Licensed Software and
its accompanying documentation and to destroy all other property of BBPark
which are then in your possession or control related to the Licensed Software
8. Force Majeure:
Neither party shall be liable for delay in performance or for non-performance
(except for monies due) occasioned by cause beyond its reasonable control,
including, but not limited to acts of God, fire, flood, earthquake, unusually
severe weather, war, government action, accident, labor trouble, shortage or
inability to obtain materials, equipment or transportation.
This Agreement is personal to you and you may not assign this Agreement in whole
or in part, without BBPark' prior written consent. Subject to the above,
this Agreement shall be binding upon and operate to the benefit of the
successors and assigns of the parties.
10. Governing Law and Attribution of Jurisdiction:
THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE PEOPLE'S REPUBLIC OF CHINA.
IN THE EVENT OF A DISPUTE CONCERNING THE FORMATION, PERFORMANCE, INTERPRETATION
OR TERMINATION OF THIS AGREEMENT, SUCH DISPUTE SHALL BE SUBJECT TO THE
JURISDICTION OF THE COMMERCIAL COURT OF WUHAN, CHINA, REGARDLESS OF THE
TYPE OF PROCEEDINGS, THE NUMBER OF DEFENDANTS, OR THE PLACE OF PERFORMANCE
OF THE AGREEMENT.
This License Agreement constitutes the entire agreement between the parties and
supersedes all prior written or verbal agreements concerning its subject matter.
Any amendment hereto must be the subject of a written agreement signed by the
The failure of either of the parties to exercise any of its rights pursuant to
this Agreement shall not imply the waiver by such party of any such exercise;
such a waiver may only be the result of an express waiver by such party. If any
provision of this License Agreement is held by a court of competent jurisdiction
to be contrary to applicable law, that provision will be enforced to the maximum
permissible extent, and the remaining provisions of the Agreement will remain in
full force and effect.
If you have any questions concerning this License Agreement, or require further
information in this regard, please contact:
Copyright BBPark 2005 - All rights reserved - 31/11/05