Apple Inc. v. Amazon.Com, Inc.
Declaration of Thomas R. La Perle in Support of 45 Reply to Opposition/Response filed byApple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Related document(s) 45 ) (Eberhart, David) (Filed on 6/8/2011)
Apple - Legal - Licensed Application End User License Agreement
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LICENSED APPLICATION END USER LICENSE AGREEMENT
The Products transacted through the Service are licensed, not sold, to You for use only under the terms of this license,
unless a Product is accompanied by a separate license agreement, in which case the terms of that separate license
agreement will govern, subject to Your prior acceptance of that separate license agreement. The licensor (“Application
Provider”) reserves all rights not expressly granted to You. The Product that is subject to this license is referred to in
this license as the “Licensed Application.”
a. Scope of License: This license granted to You for the Licensed Application by Application Provider is limited to a nontransferable license to use the Licensed Application on any iPhone or iPod touch that You own or control and as
permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions (the “Usage Rules”). This
license does not allow You to use the Licensed Application on any iPod touch or iPhone that You do not own or control,
and You may not distribute or make the Licensed Application available over a network where it could be used by
multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed
Application. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse
engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed
Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited
by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced
components included with the Licensed Application). Any attempt to do so is a violation of the rights of the Application
Provider and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of
the license will govern any upgrades provided by Application Provider that replace and/or supplement the original
Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
b. Consent to Use of Data: You agree that Application Provider may collect and use technical data and related
information, including but not limited to technical information about Your device, system and application software, and
peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other
services to You (if any) related to the Licensed Application. Application Provider may use this information, as long as it
is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.
c. Termination. The license is effective until terminated by You or Application Provider. Your rights under this license
will terminate automatically without notice from the Application Provider if You fail to comply with any term(s) of this
license. Upon termination of the license, You shall cease all use of the Licensed Application, and destroy all copies, full
or partial, of the Licensed Application.
d. Services; Third Party Materials. The Licensed Application may enable access to Application Provider’s and third party
services and web sites (collectively and individually, "Services"). Use of the Services may require Internet access and that
You accept additional terms of service.
You understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent,
or objectionable, which content may or may not be identified as having explicit language, and that the results of any
search or entering of a particular URL may automatically and unintentionally generate links or references to
objectionable material. Nevertheless, You agree to use the Services at Your sole risk and that the Application Provider
shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
Certain Services may display, include or make available content, data, information, applications or materials from third
parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, You acknowledge
and agree that the Application Provider is not responsible for examining or evaluating the content, accuracy,
completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third
Party Materials or web sites. The Application Provider 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 Services, Third Party Materials or web
sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites
are provided solely as a convenience to You. Financial information displayed by any Services is for general informational
purposes only and is not intended to be relied upon as investment advice. Before executing any securities transaction
based upon information obtained through the Services, You should consult with a financial professional. Location data
provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations
where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to
death, personal injury, property or environmental damage. Neither the Application Provider, nor any of its content
providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location
data displayed by any Services.
You agree that any Services contain proprietary content, information and material that is protected by applicable
intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary
Apple - Legal - Licensed Application End User License Agreement
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content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the
Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or
create derivative works based on the Services, in any manner, and You shall not exploit the Services in any
unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further
agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate
the rights of any other party, and that the Application Provider is not in any way responsible for any such use by You,
nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as
a result of using any of the Services.
In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from the
iPhone or iPod touch are not available in all languages or in all countries. The Application Provider makes no
representation that such Services and Materials are appropriate or available for use in any particular location. To the
extent You choose to access such Services or Materials, You do so at Your own initiative and are responsible for
compliance with any applicable laws, including but not limited to applicable local laws. The Application Provider, and its
licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In
no event will the Application Provider be liable for the removal of or disabling of access to any such Services. The
Application Provider may also impose limits on the use of or access to certain Services, in any case and without notice
e. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR
SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS
WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES
PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ("SERVICES") ARE PROVIDED "AS IS" AND “AS AVAILABLE”,
WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL
WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF
MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET
ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT
AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED
IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT
THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT
DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR
ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD
THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES
OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS
MAY NOT APPLY TO YOU.
f. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLICATION PROVIDER BE
LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY
OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE
LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR
OTHERWISE) AND EVEN IF APPLICATION PROVIDER 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, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Application Provider’s total
liability to you for all damages (other than as may be required by applicable law in cases involving personal injury)
exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of
its essential purpose.
g. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States
law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation,
the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on
the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied
Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any
such country or on any such list. You also agree that you will not use these products for any purposes prohibited by
United States law, including, without limitation, the development, design, manufacture or production of nuclear,
missiles, or chemical or biological weapons.
h. The Licensed Application and related documentation are "Commercial Items", 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.
Unpublished-rights reserved under the copyright laws of the United States.
i. The laws of the State of California, excluding its conflicts of law rules, govern this license and your use of the
Licensed Application. Your use of the Licensed Application may also be subject to other local, state, national, or
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