This software is subject to the terms and conditions of the Microsoft License and NonDisclosure Agreement for Microsoft DirectX 8.0 Pre-Release Code, a copy of which is provided below for your convenience. If you have not signed a Microsoft License and NonDisclosure Agreement for this software, you are not authorized to install, copy or otherwise use this software.
MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
(BETA VERSION OF DIRECTX SDK 8.0 )
This is a legal agreement between you, either an individual or an entity ("Recipient"), and Microsoft Corporation ("Microsoft"). If you do not agree to the terms of this Agreement, promptly return this CD-ROM and the accompanying items, including written materials and binders or other containers, (collectively the "Software") to Microsoft.
1. GRANT OF LICENSE.
(a) Microsoft grants to Recipient a limited, non-exclusive, nontransferable, royalty-free license to make and use up to three (3) copies of the executable code of the Software CPUs located on RecipientÆs premises at the address provided below, only for the purpose of developing and testing prerelease versions of computer software applications, and to provide feedback thereon to Microsoft. Recipient must acquire the final commercial release of the DirectX in order to develop and distribute versions of RecipientÆs computer software applications which operate with the final commercial release of DirectX. Development and distribution of such computer software applications shall be governed by the license agreement accompanying the final commercial release of the DirectX. Recipient
acknowledges that Microsoft will not be obligated to make the Software available as a final commercial product. All other rights are reserved to Microsoft. Recipient shall not rent, lease, sell, sublicense, assign, or otherwise transfer the Software, including any accompanying printed materials. Recipient shall not reverse engineer, decompile or disassemble the Software except to the extent that this restriction is expressly prohibited by applicable law. Microsoft and its suppliers shall retain title and all ownership rights to the Software.
(b) Recipient agrees to provide reasonable feedback to Microsoft, including but not limited to usability, bug reports, and test results, with respect to the Software testing. Recipient will use reasonable efforts to review and comment on all documentation supplied. All bug reports, test results, and other feedback made by Recipient shall be the property of Microsoft and may be used by Microsoft for any purpose. Due to the nature of the development work, Microsoft is not certain as to when errors or discrepancies in the Software may be corrected.
(c) Recipient may disclose the Software only to its employees who have a need to know in order to accomplish the purposes identified in Section 1(a) and such employeesÆ use of the Software shall take place solely at RecipientÆs site. Recipient will have executed appropriate written agreements with its employees sufficient to enable it to comply with the terms of this Agreement. Recipient agrees that, for a period of up to six (6) months after commercial release of the Software, it will maintain a list of all employees who have had access hereunder to the Software or related information.
2. TERM OF AGREEMENT. The term of this Agreement shall commence on RecipientÆs installation of the Software and shall continue until terminated by Microsoft in writing at any time, with or without cause. This Agreement will terminate without notice upon the commercial release of the Software. Upon the termination of this Agreement, Recipient shall promptly return to Microsoft, or certify destruction of, all full or partial copies of the Software and related materials provided my Microsoft. Section 5 shall survive termination or expiration of this Agreement with respect to any information that has not been made public by Microsoft as of the commercial release of the Software.
3. COST OF TESTING. There is no charge to Recipient for testing of the Software. Microsoft shall bear all transportation expenses relating to the shipment of the Software to the RecipientÆs place of business and Recipient will pay any return transportation expenses.
4. PRODUCT MAINTENANCE. Microsoft is not obligated to provide maintenance, technical support or updates to Recipient for Software licensed pursuant to this Agreement. However, Microsoft may, in its sole discretion, provide further pre-release versions, technical support, updates and/or supplements of any Software and/or related information ("Updates") to Recipient hereunder, in which case such Updates shall also be deemed to be included in the Software, and therefore governed by this Agreement, unless other terms of use are provided by Microsoft with such Updates. In no event shall Microsoft be obligated to provide Recipient, free of charge, a copy of the commercial release version of the Software in connection with RecipientÆs participation in the testing program. Microsoft is not obligated to make any Software commercially available.
5. CONFIDENTIALITY. The Software and related information is proprietary and confidential information to Microsoft and its suppliers. Recipient agrees not to disclose or provide the Software, documentation, or any related information (including the Software features or the results of use or testing) to any third party or use the Software for any purpose other than as provided in this Agreement. However, Recipient may disclose confidential information in accordance with judicial or other governmental order, provided Recipient shall give Microsoft reasonable written notice prior to such disclosure and shall comply with any applicable protective order or equivalent. Further, Recipient shall not be obligated to maintain the confidentiality of information which Recipient can prove (i) is already known to Recipient without an obligation to maintain the same as confidential; (ii) becomes publicly known through no wrongful act of Recipient; (iii) is rightfully received from a third party without breach of an obligation of confidentiality owed to Microsoft; or (iv) is independently developed by Recipient. This provision shall survive the termination or expiration of this Agreement with respect to any information that has not been made public by Microsoft as of the commercial release of the Software.
6. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and "applets" incorporated into the Software), and any copies Recipient is permitted to make herein are owned by Microsoft or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants Recipient no rights to use such content. If this Software contains documentation which is provided only in electronic form, Recipient may print one copy of such electronic
documentation. Recipient may not copy the printed materials accompanying the Software. All rights not expressly granted are reserved by Microsoft.
7. DISCLAIMER OF WARRANTIES. The Software is deemed accepted by Recipient. The Software constitutes pre-release code and may be changed substantially before commercial release. To the maximum extent permitted by applicable law, Microsoft and its suppliers provide the Software and any (if any) support services related to the Software ("Support Services") AS IS AND WITH ALL FAULTS, and hereby disclaim all warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties or conditions of merchantability, of fitness for a particular purpose, of lack of viruses, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort, all with regard to the Software, and the provision of or failure to provide Support Services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. The entire risk as to the quality of or arising out of use or performance of the Software and documentation remains with Recipient.
8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. To the maximum extent permitted by applicable law, in no event shall Microsoft or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Software, the provision of or failure to provide Support Services, or otherwise under or in connection with any provision of Agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Microsoft or any supplier, and even if Microsoft or any supplier has been advised of the possibility of such damages. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to Recipient.
9. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that Recipient might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Microsoft and any of its suppliers under any provision of this Agreement and RecipientÆs exclusive remedy for all of the foregoing shall be limited to the greater of the amount actually paid by Recipient for the Software or Five Dollars (US$5.00). The foregoing limitations, exclusions and disclaimers (including Section 6 and 7 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
10. GOVERNING LAW; ATTORNEYS FEES. This Agreement shall be construed and controlled by the laws of the State of Washington, and Recipient consents to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington, unless no federal jurisdiction exists, in which case Recipient consents to exclusive jurisdiction and venue in the Superior Court of King County, Washington. Recipient waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.
11. U.S. GOVERNMENT RESTRICTED RIGHTS. This Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(i) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Microsoft Corporation, One Microsoft Way, Redmond, WA 98052-6399.
12. EXPORT RESTRICTIONS. Recipient acknowledges that Software is of U.S.-origin. Recipient agrees to comply with all applicable international and national laws that apply to these products, including the U.S. Export Administration Regulations, as well as end-user, end-use and country destination restrictions issued by U.S. and other governments. For additional information on exporting Microsoft products, see http://www.microsoft.com/exporting/.
13. RESTRICTIONS: APPLICABLE LAWS; PRIVACY. Recipient shall comply with all applicable laws and regulations governing the use of the Software including, but not limited to, the ChildrenÆs Online Privacy Protection Act ("COPPA"). COPPA regulates the online collection of personal information from children under the age of 13. More information on COPPA is available online at http://www.ftc.gov/bcp/conline/pubs/buspubs/coppa.htm.
Should you have any questions concerning this Agreement, or if you desire to contact Microsoft for any reason, please write: Microsoft Corporation, Attn: DirectX Team, One Microsoft Way, Redmond, WA 98052-6399.
