END-USER LICENSE AGREEMENT (this "License Agreement") is between Encore Software, Inc. ("Encore") and Encore's licensors (collectively "Licensor"), and Consumer ("You").
THIS LICENSE AGREEMENT RELATES TO ALL COMPUTER SOFTWARE, AND THE ACCOMPANYING USER DOCUMENTATION CONTAINED ON THIS CD-ROM (THE "SOFTWARE"). THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD) TO YOU. BY USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND LICENSOR CONCERNING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT INSTALL THIS SOFTWARE, AND REMOVE ALL PORTIONS OF THE SOFTWARE, IF ANY, THAT HAVE BEEN INSTALLED. IF YOU ARE THE ORIGINAL INSTALLER OF THE SOFTWARE AND DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, YOU MAY PROMPTLY RETURN THE SOFTWARE FOR A FULL REFUND OF THE AMOUNT PAID (BUT NOT YOUR SHIPPING COSTS) BY PROVIDING THE FOLLOWING MANDATORY ITEMS: (1) THE COMPLETE PRODUCT IN GOOD CONDITION (ALL DISCS, MANUALS AND PRINTED MATERIALS); (2) THE BOX WITH THE UPC CODE INTACT; (3) YOUR ORIGINAL DATED RECEIPT; AND (4) A LETTER OR CARD WITH YOUR FULL NAME AND RETURN MAILING ADDRESS. PLEASE SEND THESE ITEMS TO THE FOLLOWING ADDRESS: ENCORE SOFTWARE, INC., 16920 S. MAIN STREET, GARDENA, CA 90248, ATTN: CUSTOMER RETURNS.
1. License Grant. Licensor hereby grants to you, and you accept, a non-exclusive license to use the Software in machine-readable, object code form only (collectively referred to as the "Software"). The Software may be used only on a single computer owned, leased, or otherwise controlled by you; or in the event of inoperability of that computer, on a backup computer selected by you. Neither concurrent use on two or more computers nor use on a local area network or other network is permitted. You agree that you will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this License Agreement, except that you may permanently transfer all of your rights under this License Agreement, provided that you retain no copies, transfer all of the Software (including all related media and printed materials and any upgrades), and the transferee agrees to the terms of this License Agreement). You agree that you will not reverse assemble, reverse compile, or otherwise translate the Software.
2. Licensor's Rights. You acknowledge and agree that the Software is proprietary product of Licensor protected under U.S. copyright law. You further acknowledge and agree that all right, title and interest in and to the Software, including any associated intellectual property rights, are and shall remain with Licensor. This License Agreement does not convey to you an interest in or to the Software, but only a revocable limited right of use revocable in accordance with the terms of this License Agreement. You are responsible for, and must use your best efforts to prevent the breaking of these terms by any other person.
3.1. Scope of Rights. You may:
a. Install the Software on your computer;
b. Retain the Software CD for backup purposes;
c. Make one copy of the Software on a second CD for the purpose of backup in the event the Software CD is damaged or destroyed (retaining any copyright and other proprietary notices that appear on the original CD); and
d. Make one copy of the User's Manual for backup purposes so long as any such copies of the Software or the User's Manual include Licensor's copyright and other proprietary notices.
3.2. Restrictions on Use. You may not:
a. Use, copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor;
b. Reverse assemble, reverse compile, or otherwise translate the Software;
c. Transfer, lease, assign, or sublicense your rights except for a transfer of the Software in its entirety.
d. Reproduce, republish or reuse any photograph or any other element or content of the Software, individually or in combination, but applicable copyright law may give you such rights. If you are uncertain about your rights, please contact an attorney.
4. Fees and Payments. The license fees paid by you are paid in consideration of the licenses granted under this License Agreement.
5. Term. This License Agreement is effective upon your opening of this Software and shall continue until terminated. You may terminate this License Agreement at any time by returning the Software and all copies thereof and extracts therefrom to Licensor. Licensor may terminate this License Agreement upon the breach by you of any term hereof. Upon such termination by Licensor, you agree to return to Licensor the Software and all copies and portions thereof. There shall be no refund in the event of termination under the provisions of this paragraph.
6. Limited Warranty.
a. Excluding the internet website link(s), Licensor warrants, for your benefit alone, for a period of 90 days from the date of commencement of this License Agreement (referred to as "Warranty Period") that the Software CD-ROM in which the Software is contained is free from defects in material and workmanship. Licensor further warrants, for your benefit alone, that during the Warranty period the Software shall operate substantially in accordance with the functional specifications in the User's Manual. If during the Warranty Period, a defect in the Software appears, you may return the Software to Licensor for either replacement, or, if so elected by Licensor refund of amounts paid by you under this License Agreement. You agree that the foregoing constitutes your sole and exclusive remedy for breach by Licensor of any warranties made under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE SOFTWARE, AND THE SOFTWARE CONTAINED THEREIN, ARE LICENSED "AS IS," AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
b. This product may contain hyperlinks to web sites on the World Wide Web (the "Linked Sites"). You acknowledge and agree that (i) the Linked Sites are not under the control of Encore; (ii) Encore is not responsible or liable for the content, advertising, expiration, availability, changes or updates related to any Linked Sites or hyperlink contained in a Linked Site, or any goods or services made available on such Linked Sites; and (iii) Encore is not responsible for webcasting, software, download or any other form of transmission or media received from any Linked Site. Linked Sites are provided to you only as a convenience, and the inclusion of any Linked Sites does not imply endorsement by Encore of any such Linked Sites. You acknowledge and agree that Encore shall not be responsible or liable, either directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance upon any content, goods or services available on or through any such Linked Site.
YOU ASSUME RESPONSIBILITY FOR ALL USE OF OR ACCESS TO LINKED SITES, AND ACCESS THE SAME AT YOUR OWN RISK. ENCORE EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR LINKED SITES. LINKED SITES ARE MADE AVAILABLE TO YOU WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY ENCORE, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY.
7. Limitation of Liability. The cumulative liability of Licensor to you for all claims relating to the Software and this agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the license fee paid to Licensor for use of the Software. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOSS OF PROFITS; ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST YOU, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THAT THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. Proprietary Protection. Licensor shall retain sole and exclusive ownership of all right, title, and interest in and to the Software and all modifications and enhancements. This Agreement does not provide you with title or ownership of the Software, but only a right of limited use.
9. Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
10. Severability. In the event that any terms of this License Agreement are or become or are declared to be invalid or void by any court of competent jurisdiction, such determination shall have no effect on the remaining terms of this Agreement, which shall remain in full force and effect.
11. Governing Law. This License Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A. All actions or proceedings seeking the interpretation and/or enforcement of this Agreement shall be brought only in the State or Federal Courts located in Los Angeles County in the State of California. Licensor and Consumer hereby submit themselves to the jurisdiction of such courts.
12. Dispute Resolution. Any dispute, claim or controversy concerning the parties' duties under this License Agreement shall be directed to binding arbitration administered by, and pursuant to the rules of, the American Arbitration Association ("AAA"). Such arbitration shall take place in Los Angeles County in the State of California. Each party shall bear the expense of their own attorney's fees and its prosecution of its claims/defenses. The parties shall share equally all other costs and expenses associated with such arbitration. Judgment upon any AAA award may be entered in any court having jurisdiction as outlined in section 11 of this License Agreement.
13. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent action in the event of future breaches.
14. No Adequate Legal Remedy. You acknowledge that, in the event of your breach of any of the foregoing provisions, Licensor will not have an adequate remedy in money or damages. Licensor shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Licensor's right to obtain injunctive relief shall not limit its right to seek further remedies.
15. U.S. Government Restrictions. This Software is provided with restricted rights. Use, duplication, or disclosure by the Government is subject to restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227 - 7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable.
Encore Software and the Encore logo are trademarks of Encore Software, Inc.
(c) 2002 Encore Software, Inc. All rights reserved.
