between Encore Software, Inc. and its Licensors (collectively "Licensor") and Consumer ("You")
READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING THE SOFTWARE CONTAINED ON THIS CD. THIS LICENSE RELATES TO ALL COMPUTER SOFTWARE, AND THE ACCOMPANYING USER DOCUMENTATION CONTAINED ON THIS CD (THE "PROGRAM"). THE PROGRAM IS COPYRIGHTED AND LICENSED (NOT SOLD) TO YOU. BY USING THE PROGRAM, 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 PROGRAM.
1. License Grant. Licensor hereby grants to you, and you accept, a nonexclusive license to use the computer programs contained on this CD 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 Program 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 Program, 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 Program, but only a 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 Licensed Program into your computer;
b. Retain the Program CD for backup purposes;
c. Make one copy of the Software on a second CD for the purpose of backup in the event the Program 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 Licensed Program (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 Licensed Program;
c. Transfer, lease, assign, or sublicense your rights except for a transfer of the Licensed Program in its entirety.
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 program and shall continue until terminated. You may terminate this License Agreement at any time by returning the Program 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 Program and all copies and portions thereof.
6. Limited Warranty. 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 Program CD 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 Program shall operate substantially in accordance with the functional specifications in the User's Manual. If during the Warranty Period, a defect in the Program appears, you may return the Program 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 PROGRAM, 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.
7. Limitation of Liability. The cumulative liability of licensor to you for all claims relating to the licensed program 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 program. 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 Program and all modifications and enhancements. This Agreement does not provide you with title or ownership of the Licensed Program, but only a right of limited use.
9. Severability. In the event that any terms of this 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.
10. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A. Licensor and Consumer hereby agree that any dispute concerning the partiesí duties under this Agreement which the parties cannot resolve within thirty (30) days shall be directed to binding arbitration administered by, and pursuant to the rules of the American Arbitration Association (ìAAAî). Such arbitration shall take place in the County of Los Angeles, in the State of California, with all expenses being shared equally by the parties. Judgment upon any AAA award may be entered in any court having jurisdiction. Subject to the foregoing, the prevailing party of such arbitration shall be entitle to reimbursement to recover, in addition to any other relief granted, reasonable attorney fees and expenses of such arbitration. The party against whom enforcement is sought shall pay any costs incurred in the enforcement of the arbitration award.
11. 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.
12. 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.
13. U.S. Government Restrictions. This Program 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 is a registered trademark of Encore Software, Inc.
© 2000 Encore Software, Inc. All rights reserved.
