Game Over in Machinimation (TM) ⌐ 2004 Fountainhead Entertainment, Inc. Machinimation (TM) is a trademark of Fountainhead Entertainment, Inc. ALL RIGHTS RESERVED. GAME OVER (TM) names, characters, and related indicia SM & ⌐ 2004 Carsey-Werner-Mandabach, LLC. ALL RIGHTS RESERVED. All other copyrights, trademarks and trade names are properties of their respective owners.
This work contains software technology licensed from Id Software, Inc. Copyright 2003 Id Software, Inc. All Rights Reserved.
Limited Use Software License Agreement
This Limited Use Software License Agreement (this "Agreement") is a legal agreement between you, the end-user, and Fountainhead Entertainment, Inc. ("Fountainhead"). BY CONTINUING THE INSTALLATION OF THE SOFTWARE PROGRAM TITLED Game Over in Machinimation (THE "SOFTWARE"), BY LOADING OR RUNNING THE SOFTWARE, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, COMPUTER RAM OR OTHER STORAGE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. Grant of License. Subject to the terms and provisions of this Agreement and so long as you fully comply at all times with this Agreement, Fountainhead grants to you the non-exclusive and limited right to use the Software only in executable or object code form. The term "Software" includes all elements of the Software, including, without limitation, written materials, software images, character images, data files and screen displays. You are not receiving any ownership or proprietary right, title or interest in or to the Software or the copyrights, trademarks, or other rights related thereto. This limited license shall automatically expire upon the broadcast of the last episode of the GAME OVER television series on network television, and you agree to immediately cease use of the Software and delete all copies of the Software on your hard drive at that time. For purposes of the first sentence of this section, "use" means loading the Software into RAM and/or onto computer hard drive, as well as installation of the Software on a hard disk or other storage device, and means the uses permitted in sections 2. and 4. herein below. You agree that the Software will not be downloaded, shipped, transferred, exported or re-exported into any country in violation of the U.S. Export Administration Act (or any other law governing such matters) by you or anyone at your direction and that you will not utilize and will not authorize anyone to utilize, in any other manner, the Software in violation of any applicable law. The Software shall not be downloaded or otherwise exported or re-exported into (or to a national or resident of) any country to which the U.S. has embargoed goods or to anyone or into any country who/which are prohibited, by applicable law, from receiving such property. In exercising your limited rights hereunder, you shall comply, at all times, with all applicable laws, regulations, ordinances and statutes. Fountainhead reserves all rights not granted in this Agreement, including, without limitation, all rights to Fountainhead's trademarks. All other copyrights, trademarks and trade names are properties of their respective owners.
2. Permitted New Creations. Subject to the terms and provisions of this Agreement and so long as you fully comply at all times with this Agreement, Fountainhead grants to you the non-exclusive and limited right to create for the Software (except any Software code) your own machinima works (the "New Creations") for your own personal use which shall operate only with the Software. You may include within the New Creations certain textures and other images (the "Software Images") from the Software. You shall not create any New Creations which may infringe any rights of any third party or which may be libelous, defamatory, obscene, shocking, indecent, false, misleading, or otherwise illegal or unlawful, or which may in any manner detract from, or impugn the public acceptance and popularity of the television series "GAME OVER" or any person related thereto. You agree that the New Creations will not be downloaded, shipped, transferred, exported or re-exported into any country in violation of the U.S. Export Administration Act (or any other law governing such matters) by you or anyone at your direction and that you will not utilize and will not authorize anyone to utilize, in any other manner, the New Creations in violation of any applicable law. The New Creations shall not be downloaded or otherwise exported or re-exported into (or to a national or resident of) any country to which the U.S. has embargoed goods or to anyone or into any country who/which are prohibited, by applicable law, from receiving such property. You shall not rent, sell, lease, lend, offer on a pay-per-play basis or otherwise commercially exploit or commercially distribute the New Creations. You are only permitted to distribute, without any cost or charge, the New Creations to other end-users so long as such distribution is not infringing against any third party right and is not otherwise illegal or unlawful. As noted below, in the event you commit any breach of this Agreement, your license and this Agreement shall automatically terminate, without notice.
3. Intellectual Property Rights. Certain written materials (the "Written Materials") may accompany the Software. The Software, the Written Materials and all copyrights, trademarks and all other conceivable intellectual property rights related to the Software and the Written Materials are owned by Fountainhead and are protected by United States copyright laws, international treaty provisions and all applicable law, such as the Lanham Act. You must treat the Software and the Written Materials like any other copyrighted material, as required by 17 U.S.C., º101 et seq. and other applicable law. You agree to use your best efforts to see that any user of the Software licensed hereunder, the Written Materials or the New Creations complies with this Agreement. You agree that you are receiving a copy of the Software and the Written Materials by limited license only and not by sale and that the "first sale" doctrine of 17 U.S.C. º109 does not apply to your receipt or use of the Software or the Written Materials. This section shall survive the cancellation or termination of this Agreement.
4. NO WARRANTIES. FOUNTAINHEAD, CARSEY-WERNER-MANDABACH, UPN, AND GAMEFLY (individually and collectively the "Parties") EXPRESSLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT, WITH RESPECT TO THE SOFTWARE, THE WRITTEN MATERIALS, THE SOFTWARE IMAGES AND OTHERWISE. THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTY. FURTHERMORE, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES: (1) THAT THE SOFTWARE AND/OR ANY WEB SITES FROM WHICH THE SOFTWARE MAY BE DOWNLOADED ARE FREE FROM VIRUSES, WORMS, TROJAN HORSES OR ANY OTHER TYPES OF COMPUTER "BUGS" OR TECHNICAL MALFUNCTIONS; (2) THAT THE SOFTWARE AND/OR THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; (3) THAT THE SOFTWARE WILL MEET YOUR SPECIFIC OR SPECIAL REQUIREMENTS. (CHECK YOUR MANUFACTURER'S INSTRUCTIONS.) ADDITIONAL STATEMENTS, WHETHER ORAL OR WRITTEN, DO NOT CONSTITUTE WARRANTIES BY THE PARTIES AND SHOULD NOT BE RELIED UPON. This section shall survive the cancellation or termination of this Agreement.
5. Governing Law, Venue, Indemnity and Liability Limitation. This Agreement shall be construed in accordance with and governed by the applicable laws of the State of Texas and applicable United States federal law. Except as set forth below, exclusive venue for all litigation regarding this Agreement shall be in Dallas County, Texas and you agree to submit to the jurisdiction of the federal and state courts in Dallas County, Texas for any such litigation. You hereby agree to indemnify, defend and hold harmless the Parties, their respective officers, employees, directors, agents, licensees (excluding you), sub-licensees (excluding you), successors and assigns from and against all allegations, losses, lawsuits, damages, causes of action and claims relating to and/or arising from the New Creations or the distribution or other use of the New Creations or relating to and/or arising from your breach of this Agreement. You agree that your unauthorized use of the Software Images, the Written Materials, or the Software, or any part thereof, may immediately and irreparably damage the Parties such that they could not be adequately compensated solely by a monetary award, and in such event, the Parties shall be entitled to injunctive relief, in addition to all other available legal and equitable remedies including monetary awards, at their option, to prohibit such unauthorized use without the necessity of the Parties posting bond or other security. IN ANY CASE, THE PARTIES AND THEIR RESPECTIVE OWNERS, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, REPRESENTATIVES, AGENTS, LICENSEES (EXCLUDING YOU), SUBLICENSEES (EXCLUDING YOU), SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, LOST SAVINGS, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES OR ANY OTHER DAMAGES ARISING FROM ANY ALLEGATIONS AND CLAIMS FOR BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY EVEN IF THE PARTIES OR THEIR RESPECTIVE AGENT(S) HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, EVEN IF SUCH DAMAGES ARE FORESEEABLE, OR LIABLE FOR ANY CLAIM BY ANY OTHER PARTY. This section shall survive the cancellation or termination of this Agreement.
6. General Provisions. Neither this Agreement nor any part or portion hereof shall be assigned or sublicensed by you. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court of competent jurisdiction, the validity and enforceability of the other provisions shall not be affected thereby. If any provision is determined to be unenforceable by a court of competent jurisdiction, you agree to a modification of such provision to provide for enforcement of the provision's intent, to the extent permitted by applicable law. Failure of Fountainhead to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision. IMMEDIATELY UPON YOUR FAILURE TO COMPLY WITH OR BREACH OF ANY TERM OR PROVISION OF THIS AGREEMENT, YOUR LICENSE GRANTED HEREIN AND THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE, WITHOUT NOTICE, AND FOUNTAINHEAD AND ITS LICENSORS MAY PURSUE ALL REMEDIES FOR RELIEF AGAINST YOU, WHICH ARE AVAILABLE UNDER APPLICABLE LAW AND/OR THIS AGREEMENT. Immediately upon termination of this Agreement, any and all rights you are granted hereunder shall terminate, you shall have no right to use the Software, the Written Materials or the New Creations, in any manner, and you shall immediately destroy all copies of the Software, the Written Materials and the New Creations in your possession, custody or control, and all rights granted hereunder shall revert, without notice, to and be vested in Fountainhead.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE, BY LOADING OR RUNNING THE SOFTWARE, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE OR RAM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
