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1998-06-12
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SINGLE USER SOFTWARE LICENSE AND LIMITED WARRANTY AGREEMENT
IMPORTANT... READ CAREFULLY
BY INSTALLING OR USING THIS SOFTWARE, YOU ARE INDICATING YOUR
ACCEPTANCE OF THE FOLLOWING SINGLE USER SOFTWARE LICENSE AND
LIMITED WARRANTY AGREEMENT.
This is a legal agreement between You, the Licensee ("You") and
Midnight Blue Software, Inc. ("Midnight Blue") with its principal office located at
P.O. Box 24032, Rochester, New York 14624. If You do not agree to the terms
of this Agreement, do not install or use this software. If You install or use this
software, You are agreeing that the following terms and conditions will apply to
Your use of Midnight Blue's software program ("Software") and to Your use of
the documentation. This is a License Agreement and not an agreement for sale.
1. GRANT OF LICENSE.
Midnight Blue grants You a personal, nonexclusive, and nontransferable license
to use this copy of the Software and documentation on a single computer at a
time (i.e., with a single CPU at a single location) and not accessed via a network
("License"). Documentation shall mean the end-user on-line help file that
describes installation, use and operation of the Software. You may evaluate the
Software for up to a maximum of thirty (30) days, after which you must either
register and pay for the Software, or remove the Software from your computer.
Midnight Blue grants no other rights in the Software or documentation and
retains the right to terminate this Agreement at any time should You violate any
of its terms.
2. OWNERSHIP AND TITLE.
Midnight Blue owns exclusive title to the Software, the documentation and your
copy of this Software. Midnight Blue's ownership and rights are protected by
United States patent and copyright laws and international treaty provisions.
Midnight Blue is not aware of any patent, copyright or other rights which may be
infringed by Your use of the Software or documentation. This License is not a
sale of any interest in the original copy of the Software or documentation or in
any subsequent copies regardless of their form.
3. COPYING AND DISTRIBUTING.
You may make as many unmodified copies of the Software for backup and
archival purposes as you determine necessary. You may also make unmodified
copies of the complete Software and documentation package for the purpose of
distributing it via electronic means: Web, FTP, Bulletin Board Systems,
Electronic Services, Shareware Collection CD-ROM. The individual files that
make up the distribution, and are recreated by running the installation program,
may not be distributed separately in any way. The redistributable complete
Software and documentation package may not be sold for profit or incorporated
in commercial products without the written permission of the copyright holder.
4. COPYING AND DISTRIBUTING FILES CREATED WITH THE SOFTWARE.
You may copy and distribute files (screen savers) created using the software,
subject to the following limitations: Files created during the trial period
may not be distributed. Files created when using the software registered with
Midnight Blue for personal use, and thereby licensed for personal (non commercial)
use, may be distributed to up to a maximum of 100 individuals. When licensed for
personal use, you may not distribute files created with the toolkit via public
networks, or widely distributed electronic media. When licensed for personal use,
you may not accept payment for files created with the software. Files created
when using the software registered with Midnight Blue for professional use, and
thereby licensed for professional use, may be distributed to an unlimited
audience. When licensed for professional use, you are specifically permitted to
distribute files created with the toolkit via public networks, or widely
distributed electronic media. When licensed for professional use, you are
permitted to accept payment for files created with the software. It is your
responsibility to ensure that you have the legal right to use the images you
include in your screen savers.
5. USE RESTRICTIONS.
You may move this Licensed copy of the Software from one of Your computers
to another computer owned by You, provided the Licensed copy resides only on
one of Your computers at a time. However, the Software may NOT be
electronically transferred from one computer to another over a network. If You
wish to use the Software on a network server, You must register each computer
on the network on which the Software will be used. You may not give registered
copies of the Software or documentation or transfer this License to any other
person or entity, nor lend, rent, lease, license, sublicense, sell or otherwise
dispose of the Software or the documentation or the right to use the Software or
documentation to any other party. You also may not adapt, modify, decompile,
disassemble, reverse engineer, translate or create any derivative works based
upon the Software, or adapt, modify, translate or create derivative works based
upon the documentation.
6. CONDITION OF LICENSE AND TERMINATION.
This License is granted to You on the express condition that You will only use
the Software and documentation in accordance with the terms of this License
Agreement. If You fail to comply with any of the restrictions stated in this
License, the License will be deemed terminated without notice to You, and You
may no longer use the Software and documentation and are required to return
the original and all existing copies of the Software and documentation to
Midnight Blue, or to destroy all copies.
7. LIMITED WARRANTY.
MIDNIGHT BLUE WARRANTS TO YOU, THE ORIGINAL LICENSEE, THAT FOR A
PERIOD OF NINETY (90) DAYS FROM THE DATE MIDNIGHT BLUE RECEIVES THE
REGISTRATION FEE FOR THE SOFTWARE, THAT WHEN PROPERLY LOADED INTO AN
APPROPRIATE COMPUTER, THE SOFTWARE WILL OPERATE SUBSTANTIALLY IN
ACCORDANCE WITH THE ACCOMPANYING DOCUMENTATION. MIDNIGHT BLUE DOES
NOT WARRANT, HOWEVER, THAT YOUR USE OF THE SOFTWARE WILL BE
UNINTERRUPTED OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE.
8. DISCLAIMER.
EXCEPT FOR THE LIMITED WARRANTY WHICH APPEARS ABOVE, THE SOFTWARE
AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT ANY OTHER WARRANTY
CONCERNING THE USE, OR THE RESULTS OF USE, OF THE SOFTWARE OR THE
DOCUMENTATION, AND WITHOUT ANY WARRANTY THAT THE FUNCTIONS
CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE
OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
THIS WARRANTY SHALL NOT APPLY TO ANY FAILURE OR NONCONFORMITY IN
THE SOFTWARE RESULTING FROM ACCIDENT, MISUSE OR MISAPPLICATION.
9. CUSTOMER'S EXCLUSIVE REMEDY.
MIDNIGHT BLUE'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY
CLAIM ARISING FROM THIS AGREEMENT OR FROM YOUR USE OF THE SOFTWARE
OR DOCUMENTATION, SHALL BE, AT MIDNIGHT BLUE'S OPTION, EITHER (A)
RETURN OF THE PURCHASE PRICE OR (B) REPLACEMENT OF THE SOFTWARE
WHICH DOES NOT CONFORM TO MIDNIGHT BLUE'S LIMITED WARRANTY AND WHICH
IS RETURNED WITHIN THE WARRANTY PERIOD TO MIDNIGHT BLUE. ANY
REPLACEMENTS OF SOFTWARE WILL BE WARRANTED FOR THE REMAINDER OF THE
ORIGINAL WARRANTY PERIOD.
10. NO OTHER WARRANTIES.
THE ABOVE WARRANTIES, ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH
ARE EXPRESSLY EXCLUDED. YOU AGREE THAT NO ORAL OR WRITTEN
REPRESENTATION, DEMONSTRATION, STATEMENTS, ADVICE OR ADVERTISEMENTS
BY MIDNIGHT BLUE, ITS AGENTS, DEALERS, DISTRIBUTORS OR EMPLOYEES
CONSTITUTES ANY WARRANTY OR MODIFICATION OF THIS STATED DISCLAIMER
AND LIMITED WARRANTY.
11. NO LIABILITY FOR CONSEQUENTIAL DAMAGES.
NEITHER MIDNIGHT BLUE NOR ANY OTHER PERSON OR ENTITY INVOLVED IN THE
DEVELOPMENT, PRODUCTION, MARKETING OR DELIVERY OF THE SOFTWARE SHALL
BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR
SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, INFRINGEMENTS
OF PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY
RIGHTS, OR FAILURE TO REALIZE SAVINGS) OR LIKE DAMAGES, REGARDLESS
OF THE LEGAL BASIS FOR SUCH LIABILITY, RELATED TO THE USE OR THE
INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF MIDNIGHT BLUE
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF THE
CUSTOMER REMEDY IDENTIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED
OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
12. MISCELLANEOUS.
This Agreement shall be governed by the substantive laws of the State of
New York without regard to conflicts of laws. This Agreement constitutes
the entire agreement between Midnight Blue and You with respect to its
subject matter.
If You have any questions regarding this Agreement or wish to
contact Midnight Blue for any reason, please write to:
Midnight Blue Software, Inc.
P.O. Box 24032
Rochester, New York 14624
Dated: January 23, 1998