Software End-User License Agreement

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Software End-User License Agreement

REDISTRIBUTION NOT PERMITTED

Software License for Certain [Company] Products

IMPORTANT PLEASE READ CAREFULLY BEFORE USING THIS SOFTWARE: This License Agreement for certain [Company] Products (License Agreement) is a legal agreement between you (either an individual or an entity) and [Company Legal Name], Inc. and its suppliers and licensors (collectively [Company]) for the [Company] software ("Software"). The Software may include any of the following [Licensor Company] products including any combination of such products and Beta versions of the products (collectively, [Company] Products): [Product Name 1] (version [xxx]) and [Product Name 2] (version [xxx]); and [Product Name 3] (version [xxx]) (together, [Product Family Name]). You may install only ONE copy of the Software. By clicking on the Accept button, installing, copying or otherwise using the Software, you agree to be bound by the terms of this License Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, CLICK ON THE CANCEL BUTTON AND/OR DO NOT INSTALL THE SOFTWARE. YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. ANY THIRD PARTY SOFTWARE, INCLUDING ANY THIRD PARTYS PLUG-IN, THAT MAY BE PROVIDED WITH THE SOFTWARE IS INCLUDED FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT, AN ELECTRONIC COPY OF WHICH WILL BE INSTALLED IN THE APPROPRIATE [COMPANY] PRODUCT FOLDER ON YOUR COMPUTER UPON INSTALLATION OF THE SOFTWARE. [COMPANY] IS NOT RESPONSIBLE FOR ANY THIRD PARTYS SOFTWARE AND SHALL HAVE NO LIABILITY FOR YOUR USE OF THIRD PARTY SOFTWARE.

1.

Grant of License

[Licensor Company] hereby grants to you a non-exclusive license to use the Software and any related documentation (Documentation) subject to the following terms: a) You may: (i) use the Software on any single computer; (ii) use the Software on a second computer so long as the first and second computers are not used simultaneously; and (iii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices. b) The Software may include certain plug-in components (Plug-Ins), including the ActiveX Control, Java plug-in, and RA XTRA plug-in. You may only call to or otherwise use such Plug-Ins through the use of the [Company approved plug-ins] applications. Any direct use of Plug-Ins through a non-[Company] proprietary application, including a custom or user-written application is prohibited by this Agreement. c) [Company] may modify this License Agreement with respect to free versions of the Software upon 14 days written notice to you, including notice via the communications features described below.

2.

License Restrictions

a) You may not: (i) permit other individuals to use the Software except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; (v) remove any proprietary notices or labels on the Software or Documentation; or (vi) use the MP3 encoder in real time broadcasting (terrestrial, satellite, cable or other media) or broadcasting via the internet or other networks, such as, but not limited to, intranets. You also may not use the [forbidden applications] applications. Any such forbidden use shall immediately terminate your license to the Software. The recording, playback and download features of the Software are intended only for use with public-domain or properly licensed content and content creation tools. You may require a patent, copyright, or other license from a third party to create, copy, download, record or save content files for playback by this Software or to serve or distribute such files to be played back by the Software. b) You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights. c) You may only use the Software for your private, non-commercial use. You may not use the Software in any way to provide, or as part of, any commercial service or application. Copies of content files, including, but not limited to songs and other audio recordings, which are downloaded or copied using the Software, and which are protected by the copyright laws or related laws of any jurisdiction, are for your own personal use only and may not be distributed to third parties or performed outside your normal circle of family and social acquaintances. d) You may not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. e) The Software embodies a serial copying management system required by the laws of the United States. You may not circumvent or attempt to circumvent this system by any means.

3.

Copies of Software & Enhancements

If you receive the first copy of the Software electronically and a second copy on physical media (e.g., CD, diskette, etc.), the second copy may be used for archival purposes only and may not be transferred to or used by any other person. This license does not grant you any right to any enhancement or update.

4.

Beta Release Versions

In the event that the Software is a beta release version, the terms of this Section shall apply. Your license to use the Software expires 120 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the [Company] Product that [Company] intends to distribute. While [Company] intends to distribute a commercial release of the Software, [Company] reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the Beta Release Versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.

5.

Automatic Communications Features

a) The Software consists of interactive Internet applications which perform a variety of communications over the Internet as part of their normal operation. A number of communications features are automatic and are enabled by default (for example, automatic comparison with code on the [Company]s website enabling automatic updating of end-users copy of products). Such automatic communications features do not send any personally identifiable information about you without your consent. Most automatic communications features can be changed by you in User Preferences. By installing and/or using the Software, you consent to the Softwares communications features. The Software also allows the use of Cookies, similar to an Internet browser. This allows any website to set cookies for you when you view any of the websites content through the Software, unless you have disabled cookies. To learn more, visit the [Company] Consumer Software Privacy Statement link on our website at http://www.company.com. You are responsible for any telecommunications or other connectivity charges incurred through your use of the Software. b) The Software automatically communicates with [Company]'s servers on the Internet to check for updates to the Software, such as bug fixes, patches, enhanced functions, and new versions. [Company] will notify you when updates are available. If you decide to update, you agree that [Company] may upload updates and install them as part of your Software. All such updates to the Software are governed by this Agreement, unless other license terms are provided with the update. Although [Company] uses encryption technology to provide security for the auto-update process, [Company] is not responsible for the failure of such security measures. The auto-update function is not available for [Product Name 1]. c) [Product Name 1] automatically and anonymously communicates with [Company] when you install or uninstall it, and when you use it to download files from the Internet. During these automatic communications, [Company] does not send or receive any personally identifiable information about you without your consent. These anonymous communications allow [Company] to count the number of its [Product Name 1] users, to provide advertising services, and otherwise to provide a useful product and service and to plan for future enhancements and services. When you download files using [Product Name 1], it sends the name and URL of the file you are downloading along with relevant product and Internet communication information to [Licensor Company]. This information is sent so [Company] can display appropriate advertising, and for aggregate, anonymous statistical analysis. [Company] does not associate file downloads with individuals without express consent. Because [Company] works through the use of a browser window, [Company] may set a cookie if you have chosen to enable cookies in your browser. In the event the Software contains a trial or free version of [Product Name 1], the advertisements may only be removed through purchase of the [Product Name 1] Plus, which is available at http://www.[Company].com.

6.

Digital Rights Management Systems (DRMS)

The Software may include third party DRMs as Plug-in components which are subject to their own license agreements. DRMs are designed to manage and enforce intellectual property rights in digital content purchased over the Internet. You may not take any action to circumvent or defeat the security or content usage rules provided or enforced by either the DRM or the Software. DRMs may be able to revoke your ability to use applicable content. [Company] is not responsible for the operation of the DRM in any way, including revocation of your content. [Company] is not responsible for any communications to or from any third party DRM provider, or for the collection or use of information by third party DRMs. You consent to the communications enabled and/or performed by the DRM, including automatic updating of the DRM without further notice, despite the provisions of section 5(b). You agree to indemnify and hold harmless [Licensor Company] for any claim relating to your use of a third party DRM.

7.

Title

Title, ownership, rights, and intellectual property rights in and to the Software and Documentation shall

remain in [Company] and/or its suppliers. The Software is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights and intellectual property rights in and to the content accessed through the Software including the content contained in the Software media demonstration files shall be retained by the applicable content owner and may be protected by applicable copyright or other law. This license gives you no rights to such content.

8.

Warranties & Liabilities

(a) For the Plus versions of [Company] Products, the following terms apply: LIMITED WARRANTY. [Company] warrants that for a period of ninety (90) days from the date of acquisition the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. [Company] does not warrant however that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. [Company] also warrants that the media containing the Software, if provided by [Company], is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquire the Software. No Other Warranties. NO OTHER WARRANTIES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW [Company] AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE, THE ACCOMPANYING WRITTEN MATERIALS AND ANY ACCOMPANYING HARDWARE. If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident abuse or improper use; or if you violate the terms of this License Agreement, this warranty shall immediately terminate. This warranty shall not apply if the Software is used on or in conjunction with hardware or Software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. (ii) Customer Remedies. [Company]s sole liability for a breach of this warranty shall be in [Company]s sole discretion: (i) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the license fee, if any, you paid for the Software. Repaired, corrected or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software or if longer for thirty (30) days after the date [Company] either shipped to you the repaired or replaced Software or advised you as to how to operate the Software so as to achieve the functionality described in the Documentation, whichever is applicable. Only if you inform [Company] of the problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will [Company] be obligated to honor this warranty. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WHETHER IN TORT CONTRACT OR OTHERWISE SHALL [Company] OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF [Company] SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY OTHER PARTY. FURTHER, IN NO EVENT SHALL [Company]S LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE LICENSE FEE PAID TO [Company] FOR THE SOFTWARE AND DOCUMENTATION. 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 YOU. (b) For the Basic, trial, and Beta versions of [Company] Products, the following terms apply: DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, [Company] FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL [Company] OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF [Company] HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. [Company]s TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED FIVE DOLLARS ($5.00). 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 YOU.

9.

Indemnification

This Software is intended for use only with properly licensed media, content, and content creation tools. It is your responsibility to ascertain whether any copyright, patent or other licenses are necessary and to obtain any such licenses to serve and/or create, compress or download such media and content. You agree to record, play back and download only those materials for which you have the necessary patent, copyright and other permissions, licenses, and/or clearances. You agree to hold harmless, indemnify and defend [Company], its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to any claims that you have (i) viewed, downloaded, encoded, compressed, copied or transmitted any materials (other than materials provided by [Company]) in connection with the Software in violation of another party's rights or in violation of any law, or (ii) violated any terms of this License Agreement. If you are importing the Software from the United States, you shall indemnify and hold [Company] harmless from and against any import and export duties or other claims arising from such importation.

10. Termination
This License Agreement will automatically terminate if you fail to comply with any term hereof. No notice shall be required from [Company] to effect such termination. You may also terminate this License Agreement at any time by notifying [Company] in writing of termination. Upon any termination of this License Agreement, you shall immediately discontinue use of the Software and shall within three (3) days return to [Company], or certify destruction of, all full or partial copies of the Software, documentation and related materials provided by [Company]. Your obligation to pay accrued charges and fees shall survive any termination of this License Agreement.

11. No Assignment
This Agreement is personal to you, and may not be assigned without [Company]s express written consent. In the event that you are an entity that merges with another entity or are acquired by another entity during the Term, you shall provide written notice of such merger or acquisition not later than the date on which any public announcement is made. If [Company] does not consent to assignment of this Agreement to the new or acquiring entity in such merger or acquisition, [Company] may terminate this

Agreement on thirty (30) days written notice. Both parties shall perform under this Agreement until such termination is effective.

12. Technical Support

Technical support for the Software, as made available by [Company], is described at [Company]s technical support website: http://www.[Licensor Company].com/.

13. U.S. Government Restricted Rights And Export Restrictions

U.S. GOVERNMENT RESTRICTED RIGHTS: This Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer SoftwareRestricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. Manufacturer is [Company]. You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls.

14. Miscellaneous
This License Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by [Company] or not. The acceptance of any purchase order is you place is expressly made conditional on your consent to the terms set forth herein. The terms and conditions contained in this License Agreement may not be modified except in a writing duly signed by you and an authorized representative of [Company]. If any provision of this License Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This License Agreement shall be governed by the laws of the State of Washington, without regard to conflicts of law provisions, and you hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington. Any and all unresolved disputes relating in any way to, or arising out of, the Software, your use of the Software or this License Agreement shall be submitted to arbitration in the State of Washington; except that, to the extent that you have breached or have indicated your intention to breach this License Agreement in any manner which violates or may violate [Company]s intellectual property rights, or may cause continuing or irreparable harm to [Company] (including, but not limited to, any breach that may impact [Company]s intellectual property rights, or a breach by reverse engineering), [Company] may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. Any arbitration of a dispute under this Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. This License Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Copyright 2008 [Company Legal Name]. All rights reserved.