So, I just got done with my smart watch series, and decided to sign up for the WIMM Labs site, and maybe purchase a WIMM One.
I was presented with a EULA, not entirely unexpected given that their site provides private downloads of things like the SDK.
Occasionally, I actually read EULAs. There’s an annoying reverse engineering clause, although it’s fairly toothless. The clause that really bothers me, though?
CONFIDENTIALITY: You acknowledge and agree that the Software and Hardware were developed at considerable time and expense by WIMM Labs, and are confidential to and a trade secret of WIMM Labs and/or third parties. You agree to maintain the Software and Hardware in strict confidence and not to disclose or provide access thereto to any person.
So, you’re telling me that, even though I can buy the damn thing for $199 on Amazon, I can’t show it to anyone else or let them use it? Really, WIMM?
Therefore, I decided to buy a refurbed Abacus Wrist PDA – I had one a while back and it died, but IMO it was a brilliant device, potentially the best smart watch even by modern standards (except for not being able to get alerts from an Android device). I’d be willing to consider the WIMM One if they revised that portion of their EULA, but not before then.
I’ll post the full EULA text after the break – you get it after signing up for the WIMM site, and if you simply buy the device without signing up for WIMM’s site, you don’t see the EULA at all until you’re setting the watch up.
This EULA is a legal agreement between you and WIMM Labs Incorporated. This EULA applies to the use of the WIMM module (“Hardware”) and all WIMM software including pre-installed software on any of our hardware devices, web-based software, and any other software provided by WIMM Labs to you to enable the use of your WIMM device (“Software”).
By using this device, you accept all the terms and conditions of this EULA. If you do not agree to the terms of this EULA, do not use the Software and promptly return the Hardware to the vendor that provided the device to you. If you have already paid for the Hardware, you may obtain a refund of the purchase price provided that you return the Hardware to the vendor from which it was obtained within 30 days of purchase (proof of purchase is required).
GRANT OF LICENSE: This EULA grants a License that permits you to use the Hardware and Software, including the WIMM site (including internet-accessible software services). This License is non-exclusive and non-transferable. This License does not grant any rights to obtaining future Hardware upgrades, but does include all updates of the Software designed to work on the Hardware that you have purchased.
This license grant does not include upgrades, updates or supplements of the Software that are provided, but which are not compatible with your Hardware. It may be necessary for you to purchase new hardware to utilize some new software and features when a new version of the WIMM module is released.
INTELLECTUAL PROPERTY OWNERSHIP: Copyright and other intellectual, industrial and/or proprietary rights to the Hardware, Software, are owned by WIMM Labs and/or its third party providers and/or partners. WIMM Labs permits you to use the Hardware and Software only in accordance with the terms of this EULA. All rights not specifically granted in this EULA are reserved by WIMM Labs.
OTHER RESTRICTIONS: This agreement incorporates the Privacy Policy and Terms of Service provided at www.wimm.com/legal
Other than as permitted by applicable legislation, you will not, and will not allow any other person to, modify the Software or the Hardware or any part thereof, to analyze it by means of reverse engineering, to decompile or disassemble the Software or the Hardware, or to make products derived from it.
CONFIDENTIALITY: You acknowledge and agree that the Software and Hardware were developed at considerable time and expense by WIMM Labs, and are confidential to and a trade secret of WIMM Labs and/or third parties. You agree to maintain the Software and Hardware in strict confidence and not to disclose or provide access thereto to any person.
THIRD PARTY SOFTWARE LICENSES: Hardware and Software from WIMM Labs may use third party software. Notwithstanding some of the clauses contained in this EULA, use of some third party materials may be subject to other terms and conditions. The official copyright notices and specific license conditions of included third party software are set forth below in Exhibit A to this agreement and incorporated fully herein and entitled “Third Party Software Licenses.” You hereby agree to the terms and conditions for such third party software which is expressly incorporated herein.
LIMITED WARRANTY: WIMM Labs does not and cannot warrant that the Software or Hardware operates free of errors. A Limited Warranty document, fully incorporated herein, is included in the Hardware Package that contained your WIMM module.
Except for the Limited Warranty, and to the maximum extent permitted by applicable law, WIMM Labs and its suppliers provide the Hardware and the Software “AS IS”, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including but not limited to any implied warranties, duties or conditions of merchantability, non-infringement, quiet enjoyment, system integration, satisfactory quality, fitness for a particular purpose, reliability or availability, accuracy or completeness of responses, results, workmanlike effort, lack of viruses, and reasonable care and skill. If applicable law requires any implied warranties with respect to the Software or the Hardware other than what is declared in the Limited Warranty, all such warranties are limited in duration to ninety (90) days. Some states and/or jurisdictions do not allow limitations on how long an implied warranty lasts, so the above time limitation may not apply to you.
Notwithstanding the Warranty Period described in the Limited Warranty, should you breach any term(s) of this EULA, the Warranty Period will end on the date of such breach.
LIMITATION OF LIABILITY: Neither WIMM Labs nor its suppliers shall be liable to you or to any third party for any indirect, incidental, consequential, special, or exemplary damages, including in each case but not limited to damages for the inability to use the equipment or access data, loss of data, loss of business, loss of profits, business interruption or the like, arising out of the use of or inability to use the Software or Hardware even if WIMM Labs has been advised of the possibility of such damages.
Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of WIMM Labs and any of its suppliers arising from or related to this EULA shall be limited to the amount actually paid by you for the Software and the Hardware.
Some states and/or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above damage(s) limitations or exclusions of damages may not apply to you.
TERMINATION: Without prejudice to any other rights, WIMM Labs may immediately terminate its obligations to you if you fail to comply with any of its terms and conditions. Your obligations to WIMM Labs as described elsewhere in this EULA will still remain in effect. WIMM Labs reserves the right, with or without notice, to discontinue updating, upgrading or supplementing services provided to you or made available to you through the use of the Software if you fail to comply with any of these terms and conditions.
LINKS TO THIRD PARTY SITES: WIMM Labs is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. WIMM Labs is providing these links and access to third-party sites and services to you only as a convenience, and the inclusion of any link or access does not imply an endorsement by WIMM Labs of the third party site or service.
ENTIRE AGREEMENT: This EULA (including any addendum or amendment to it which may be provided from time to time at www.wimm.com/legal), plus the Limited Warranty, constitute the entire agreement between you and WIMM Labs relating to the Software and the Hardware and the support services (if any). To the extent that the terms of any policies or programs for support services (other than the Limited Warranty) from WIMM Labs conflict with the terms of this EULA, the terms of this EULA shall govern. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
TRANSLATIONS: The English version of this EULA is the controlling version. Any translations are provided for convenience only.
GOVERNING LAW: This EULA and any disputes related to this EULA or to the use of the Software and Hardware or otherwise are subject to California law, without giving effect to any principles that may provide for application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sales of Goods is hereby excluded from application to this EULA. All disputes arising out of this EULA shall be settled in the federal or state courts located in San Jose, California, which shall have exclusive jurisdiction in respect of any such disputes. To see all of the legal agreements pertaining to WIMM Labs, to print a copy of this EULA, or to contact WIMM Labs for any reason, please see www.wimm.com/legal
WOW!
Whatta EULA!
They sure go overboard.
So, basically, they want a person to buy the watch, shut up about it, Never touch it, put it away somewhere permanently and Never get any help regarding it in any manner ever (you broke the EULA excuse).
Talk about paranoia and greed.
O-well!
MY EULA says,
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READ CAREFULLY
The information contained in this message IS privileged, confidential and protected from disclosure. If the reader of this message is not the intended recipient, an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the message and deleting it along with any copies and/or printouts from your computer.
By [accepting this material|accepting this payment|accepting this business-card|viewing this t-shirt|reading this sticker] you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (”BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
This notification also automatically and immediately confirms|binds|limits the receiver in that all information regarding myself and my pseudonyms are available to you on this ONE TIME ONLY basis for the immediate purpose of this email only. Said information is Not to be used for any other reason|purpose beyond this immediate email unless otherwise stipulated specifically by myself in writing.
This Also automatically abrogates any presumed agreement to use this information for purposes of spamming|data collection (except receipts & specific correspondence)|financial reward for Any reason or under ANY guise what-so-ever.
And that takes care of THAT!
For what it’s worth, WIMM has contacted me about this, and apparently the EULA is going to be changed (they said that the current EULA dates back to before the device was publicly available). I’ll post an update when that occurs.