USE OF THE SOFTWARE CONTAINED IN THIS PACKAGE IS GOVERNED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE ENCLOSED PROPRIETARY SOFTWARE ("SOFTWARE") AND DOCUMENTATION AND DATA RELATING TO THE SOFTWARE ("DATA") OF ALIVE.COM, INC. ("MANUFACTURER"), YOU ("CUSTOMER") AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS:
1 GRANT.
Subject to the terms and conditions of this Agreement, MANUFACTURER grants to CUSTOMER, a royalty-free, non-transferable and non-exclusive license to use the SOFTWARE and DATA. CUSTOMER shall make no alteration, addition or improvement to the SOFTWARE without the prior written consent of MANUFACTURER.
2 TERM.
The rights granted hereunder to CUSTOMER shall become effective on the respective dates of delivery of the SOFTWARE and DATA to CUSTOMER and shall remain in force for ninety (90) days unless terminated as provided in Section 8 below.
3 USE OF SOFTWARE.
a During the term of this Agreement, the SOFTWARE may be installed on no more than five (5) PCs. CUSTOMER shall not use the SOFTWARE or DATA provided hereunder for any purpose except in accordance with the terms of this Agreement.
4 COPIES.
Except as expressly permitted hereunder, CUSTOMER shall not reproduce or copy, in whole or in part, SOFTWARE and DATA provided by MANUFACTURER hereunder without the prior written consent of MANUFACTURER. CUSTOMER may make one copy of the SOFTWARE for archive or emergency restart purposes. CUSTOMER agrees to reproduce and include MANUFACTURER'S copyright notice and any other proprietary legends thereon on all copies, in whole or in part, of the SOFTWARE and/or DATA or any modification thereof in any form permitted to be made under this Agreement. The SOFTWARE contains components that are owned by RealNetworks and its suppliers, including .DLL Files. Distribution of the .DLL files by CUSTOMER is prohibited.
5 TITLE.
All right, title and interest in and to and ownership of the SOFTWARE and DATA, including without limitation, all copyrights and trademarks, shall at all times remain with MANUFACTURER. CUSTOMER shall do nothing inconsistent with MANUFACTURER'S title in the SOFTWARE or DATA, including without limitation, reverse engineer, decompile, disassemble or otherwise derive the source code for the SOFTWARE. Nothing herein shall be construed as granting CUSTOMER a license or any other right under any patent, trademark, trade secret, or copyright which MANUFACTURER may have or obtain relating to the SOFTWARE or DATA except as expressly provided herein.
6 WARRANTY.
MANUFACTURER shall have no obligation hereunder for support or maintenance of the SOFTWARE, DATA, or any other products. CUSTOMER will install the SOFTWARE, DATA or other products. MANUFACTURER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SOFTWARE, ITS USE OR PERFORMANCE. MANUFACTURER IS PROVIDING THE SOFTWARE "AS IS" AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF THE SOFTWARE OR ANY INFORMATION RELATING THERETO OR CONTAINED THEREIN WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK OF ANY THIRD PARTY.
7 DISCLAIMER AND LIMITATION OF LIABILITY.
CUSTOMER IS SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF ITS DATA USED IN CONNECTION WITH THE SOFTWARE. IN NO EVENT WILL MANUFACTURER BE LIABLE FOR (i) SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR (ii) ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, RERUN TIME, INACCURATE INPUT OR WORK DELAYS, OR ANY DIRECT OR INDIRECT PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE OR DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, INCLUDING NEGLIGENCE.
8 TERMINATION.
Upon notice to CUSTOMER, MANUFACTURER may immediately terminate this Agreement and all licenses granted hereunder. Upon termination or expiration of this Agreement, CUSTOMER shall immediately return to MANUFACTURER or, at MANUFACTURERÆS direction, destroy (and certify in writing such destruction to MANUFACTURER) all copies, including partial copies, of the SOFTWARE, DATA and any other materials provided hereunder in whatever form in CUSTOMERÆS possession and shall remove such SOFTWARE from CUSTOMERÆS computer operating environment.
9 SURVIVAL.
Notwithstanding anything to the contrary contained herein, Sections 5, 6 and 7 shall survive the termination or expiration of this Agreement.
10 ASSIGNMENT.
This Agreement and the rights granted hereunder may not be assigned, sublicensed or otherwise transferred by CUSTOMER without prior written consent from MANUFACTURER.
11 GENERAL.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without regard to its conflict of law principles. This Agreement contains the entire agreement between the parties respecting the SOFTWARE; provided, however, that nothing in this Agreement shall be construed to conflict with or lessen any obligations of CUSTOMER under any separate agreement between CUSTOMER and MANUFACTURER. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall nevertheless be enforced to the fullest extent permitted by law and the remainder of this Agreement shall remain in full force and effect. This Agreement may not be modified in any manner except in a writing signed by the party against whom the same is sought to be enforced.
