LICENSE AGREEMENT FOR ZIFF-DAVIS' MACBENCH‚Ñ¢ 1.1
READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE EMBODIED IN THE MACBENCH‚Ñ¢ 1.1 DISKETTE (OR, IF DOWNLOADED, IN THE DOWNLOADED FILE(S)). Embodied in the MacBench 1.1 diskette ("diskette") (or, if downloaded, in the downloaded file(s)) is the MacBench 1.1 computer program and related documentation (the "Software"). Ziff-Davis Publishing Company, L.P., having a place of business at One Park Avenue, New York, New York 10016 ("Ziff") is the licensor under this Agreement and you are the licensee. By using the Software, in whole or in part, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, promptly return the Software (or, if downloaded, delete the Software) to the Ziff-Davis Benchmark Operation at One Copley Parkway, Suite 510, Morrisville, North Carolina 27560. Title to the Software and all copyrights, trade secrets and other proprietary rights therein are owned by Ziff. All rights therein, except those expressly granted to you in this Agreement, are reserved by Ziff.
1. Limited License
This Agreement grants you only limited rights to use the Software. Ziff grants you a non-exclusive, non-transferable license to use the Software on a single dedicated Macintosh(R) computer or on a file server networked with multiple Macintosh computers for the sole purpose of conducting benchmark tests to measure the performance of Macintosh computer hardware and operating system configurations. You have the right to make a single copy of the Software for archival purposes and the right to transfer a copy of the Software across a network only to the computers attached to the network. Ziff hereby grants you the right to publish benchmark test results obtained by you from your use of the Software provided that with the publication of each such result you:
A. Identify Ziff-Davis, the name and version number of the benchmark Software used (i.e., Ziff-Davis' MacBench‚Ñ¢ Ver. 1.1);
B. Identify the exact system unit name, amount of secondary RAM cache, if any, CPU accelerator processor speed and type, if any, amount of RAM, hard disk size, and size of hardware hard disk cache, if any, of the computer used for the test (e.g., Apple(R) Macintosh IIci with 32KB external RAM cache, WXY Corp. 33-MHz 68040 XYZ CPU accelerator, 8MB of RAM, and 80MB hard disk or Apple Power Macintosh‚Ñ¢ 6100 with 60-MHz PowerPC‚Ñ¢ 601 CPU, 8MB of RAM, and 250MB hard disk);
C. Identify the exact display name, video card name (or on-board video, if applicable), amount and type of video RAM, display resolution, and color depth, (e.g., Apple Macintosh 21-inch Color Display using on-board video with 1MB of VRAM and running at 1152 by 870 pixels with 256 colors );
D. Identify the operating system version (e.g., System 7.1), size and type of software disk cache, if any (e.g., 32KB System 7.1 disk cache), and any other special conditions used to achieve the result (e.g., disk compression utility ABC version 1.0 enabled);
E. State that all products used in the test were shipping versions available to the general public;
F. State that the test was performed without independent verification by Ziff; and
G. Follow proper trademark usage and acknowledge Ziff's trademark rights (e.g., "[ ] achieved a Processor score of 39.89 on the MacBench‚Ñ¢ 1.1 processor test. MacBench is a trademark of Ziff-Davis Publishing Company, L.P.").
This Agreement and your rights hereunder shall automatically terminate if you fail to comply with any provision of this Agreement. Upon such termination, you agree to cease all use of the Software, to delete the Software and to destroy all copies of the diskette and other materials contained in this package in your possession or under your control, or, if downloaded, to destroy any and all copies of the Software in your possession or under your control.
2. Additional Restrictions
A. You shall not (and shall not permit other persons or entities to) rent, lease, sell, sublicense, assign, or otherwise transfer the Software or this Agreement. Any attempt to do so shall be void and of no effect.
B. You shall not (and shall not permit other persons or entities to) reverse engineer, decompile, disassemble, merge, modify, include in other software or translate the Software, or use the Software for any commercial purposes, except for the publication of test results, as provided above.
C. You shall not (and shall not permit other persons or entities to) remove or obscure Ziff's copyright, trademark or other proprietary notices or legends from any of the materials contained in this package or downloaded.
3. Limited Warranty and Limited Liability
THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU, AND ZIFF ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OR APPLICATION OF OR ERRORS OR OMISSIONS IN THE SOFTWARE. IN NO EVENT SHALL ZIFF BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ZIFF HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. ZIFF SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR COSTS, ARISING OUT OF, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE, LOSS OF DATA OR EQUIPMENT, THE COSTS OF RECOVERING SOFTWARE, DATA OR EQUIPMENT, THE COST OF SUBSTITUTE SOFTWARE OR DATA, CLAIMS BY THIRD PARTIES, OR OTHER SIMILAR COSTS.
THE ONLY WARRANTY MADE BY ZIFF IS THAT THE ORIGINAL PHYSICAL MEDIA IN WHICH THE SOFTWARE IS EMBODIED AND WHICH IS DISTRIBUTED BY ZIFF SHALL BE FREE OF DEFECTS IN MATERIALS AND WORKMANSHIP. ZIFF'S ENTIRE LIABILITY AND THE USER'S EXCLUSIVE REMEDY SHALL BE LIMITED TO THE REPLACEMENT OF THE ORIGINAL PHYSICAL MEDIA IF DEFECTIVE. THE WARRANTIES AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS OR IMPLIED. NO ZIFF AGENT OR EMPLOYEE, OR THIRD PARTY, IS AUTHORIZED TO MAKE ANY MODIFICATION OR ADDITION TO THIS WARRANTY.
SOME STATES DO NOT ALLOW EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
4. U.S. Government Restricted Rights
The Software is licensed subject to RESTRICTED RIGHTS. Use, duplication or disclosure by the Government or any person or entity acting on its behalf is subject to restrictions as set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software Clause at DFARS (48 CFR 252.227-7013) for DoD contracts, in paragraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause in the FAR (48 CFR 52.227-19) for civilian agencies, on in other comparable agency clauses. The contractor/manufacturer is the Ziff-Davis Benchmark Operation, One Copley Parkway, Suite 510, Morrisville, North Carolina 27560.
5. General Provisions
Nothing in this Agreement constitutes a waiver of Ziff's rights under U.S copyright laws or any other Federal, state, local or foreign law. You are responsible for installation, management, and operation of the Software. This Agreement shall be construed, interpreted and governed under New York law. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
