PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ATTEMPTING TO USE THE SOFTWARE AND BEFORE CLICKING ON THE "YES" BUTTON BELOW. LIQUID AUDIO, INC. ("LIQUID AUDIO") IS WILLING TO LICENSE THE SOFTWARE DESCRIBED ABOVE (THE "SOFTWARE") TO YOU (THE "CUSTOMER") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY BEFORE CLICKING "YES" BUTTON, AS CLICKING ON THE "YES" BUTTON WILL INDICATE YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN LIQUID AUDIO IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU SHOULD CLICK ON THE "NO" BUTTON TO DISCONTINUE THE INSTALLATION PROCESS.
1. LICENSE GRANT AND RESTRICTIONS. Liquid Audio grants to Customer a non-exclusive, non-transferable, revocable license to use the object code copy of the Software distributed with this Agreement (the "Copy") along with related documentation during the term of this Agreement on a single CPU, which may be changed from time to time. Such license shall be perpetual upon the receipt by Liquid Audio of full payment of the respective License Fee (as described below) but shall be terminable as provided herein. Customer (a) may not modify, disassemble, decompile or reverse-engineer the Software; (b) may not rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Software to any third party or use the Software to provide time sharing or similar services to any third party; (c) may not make any copy of the Software except for a single working copy and a single backup copy; (d) may not circumvent or disable any technological features or measures in the Software for protection of intellectual property rights, and (e) may not delete the copyright and other proprietary rights notices on the Software. Any attempt by Customer to transfer any of the rights, duties or obligations hereunder except as expressly provided for in this Agreement is void. This license does not include any rights to maintenance or updates.
2. DISABLING SOFTWARE. THE SOFTWARE CONTAINS CODE WHICH MAY BE USED TO DISABLE SUCH SOFTWARE. THIS DISABLING CODE MAY BE USED TO ENSURE THAT THE SOFTWARE IS NOT USED IN VIOLATION OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION TO INFRINGE INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE OR ANY CONTENT. CUSTOMER AGREES AND ACKNOWLEDGES THAT UPON ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, AND PROVIDED THAT THE PARTIES HAVE NOT AGREED IN WRITING TO RENEW THIS AGREEMENT, THE SOFTWARE MAY, AT LIQUID AUDIO'S DISCRETION, CEASE TO FUNCTION IN SOME OR ALL RESPECTS, AND CUSTOMER MAY LOSE ACCESS TO DATA MADE WITH, OR STORED USING, THE SOFTWARE. CUSTOMER AGREES TO INDEMNIFY LIQUID AUDIO FROM ANY LIABILITY, INCLUDING LIABILITY DUE TO THIRD PARTY CLAIMS, RESULTING FROM SUCH DISABLING OF SUCH SOFTWARE. CUSTOMER AGREES AND ACKNOWLEDGES THAT THE DISABLING OF THE SOFTWARE IS A KEY FEATURE OF THE LICENSE RIGHTS AND RESPONSIBILITIES CONVEYED UNDER THIS AGREEMENT.
3. LICENSE FEE. The effectiveness of this Agreement is conditioned on the receipt by Liquid Audio or its reseller of the License Fee (or any initial installment thereof) as set forth in Liquid Audio's or its reseller's invoice(s) therefore. Such payment(s) will be made by Customer on the terms and conditions specified in such invoice(s).
4. LIMITED WARRANTY. Liquid Audio warrants for the period of ninety (90) days from the date of delivery of the Copy of the Software to Customer that:
(i) The Software, unless modified by Customer, will perform substantially in accordance with the documentation provided by Liquid Audio. Customer's sole remedy under this warranty is that Liquid Audio will either correct within a reasonable period of time any "Software Error" (failure of the Software to perform in accordance with the documentation) reported during the warranty period or, if Liquid Audio is unable to correct any such Software Error, refund to Customer the money paid for the Software. Liquid Audio does not warrant that the Software will meet Customer's requirements, that operation of the Software will be uninterrupted, error-free or secure, or that all Software Errors will be corrected.
(ii) The medium, if any (such as diskette or CD Rom), provided by Liquid Audio containing the Software will be free from defects in materials and workmanship under normal use. Liquid Audio will, at its option, replace or refund the purchase price of a faulty medium at no charge to Customer if the same is returned to Liquid Audio.
THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND LIQUID AUDIO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LIQUID AUDIO, ITS EMPLOYEES, RESELLERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
5. LIMITATION OF LIABILITY. IN NO EVENT WILL LIQUID AUDIO BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DAMAGES OF ANY KIND ARISING FROM USE OF THE COPY AND/OR THE SOFTWARE EMBODIED THEREIN, WHETHER RESULTING FROM TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHER FORM OF ACTION, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF ANY KIND, ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LIQUID AUDIO'S TOTAL LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE LICENSE FEE. Customer expressly assumes all responsibility for any damages, lost data, lost profits and other consequential damages that may result in any way out of this Agreement, including without limitation, use of the Software. Customer expressly agrees that the License Fee has been agreed to based in part upon the foregoing limitation of Liquid Audio's liability.
6. OWNERSHIP; PERMISSIONS.
(a) Customer agrees that Liquid Audio and/or its suppliers owns all right, title and interest in and to the Copy and the Software, including without limitation any and all copyrights, patents, trade secrets, trademarks and other intellectual property and proprietary rights therein. Customer will not acquire any additional licenses under any copyrights, patents, trade secrets, trademarks or other intellectual property rights on account of this Agreement.
(b) Customer will not copy, transmit, perform or distribute any audio or other content using the Software without obtaining all necessary copyright and other permissions. Any failure to obtain such permissions constitutes a material breach of this Agreement, shall cause irreparable harm to Liquid Audio, and shall entitle Liquid Audio to receive equitable relief for such failure. Customer will at its expense defend and indemnify Liquid Audio against all liabilities, damages, claims, fines and expenses (including reasonable attorney's fees) arising out of any claim that Customer has not obtained such permissions.
(c) CUSTOMER ACKNOWLEDGES THAT IN ORDER TO PURCHASE CONTENT, AND TO ACCESS AND PLAY THE SAME, INCLUDING CONTENT PREVIOUSLY PURCHASED BY CUSTOMER, CUSTOMER MUST BE AUTHORIZED BY A VALID TIME-LIMITED "PASSPORT" ISSUED PERIODICALLY BY LIQUID AUDIO IN ACCORDANCE WITH LIQUID AUDIO'S THEN-CURRENT PASSPORT POLICY.
(d) Customer acknowledges that the Passport contains Customer's personal and confidential information, including credit card information, and that it is essential to keep the Passport, and the password to the Passport confidential, both to protect Customer's personal information, and to prevent third-parties from using Customer's Passport to illegally download, copy, distribute or play content. Customer agrees to keep his or her Passport confidential, and any failure of Customer to do so shall be deemed a material breach of this Agreement. Customer will at its expense defend and indemnify Liquid Audio against all liabilities, damages, claims, fines and expenses (including reasonable attorneys' fees) arising out of Customer's breach of this provision.
(e) Customer may be liable for the unauthorized use of Customer's credit card. Customer is advised to consult the terms and conditions imposed by its credit card issuer for notification requirements and limitations on Customer's liability for loss, theft or unauthorized use of Customer's credit card. LIQUID AUDIO DISCLAIMS ANY LIABILITY FOR ANY USE OF CUSTOMER'S PASSPORT OR CREDIT CARD, INCLUDING ANY LOSS, THEFT OR UNAUTHORIZED USE THEREOF.
7. TERMINATION. Liquid Audio will have the right to terminate this Agreement if Customer breaches any material term or condition of this Agreement (including, if applicable, failure to pay any portion of the License Fee when due as provided in Liquid Audio's invoice(s) therefor) and fail to cure such breach within ten (10) days of written notice from Liquid Audio. Upon termination of this Agreement, the rights and licenses granted to Customer under this Agreement shall automatically terminate. Within five (5) days after termination, Customer will return or destroy all copies of the Software and documentation in Customer's possession. Upon request, Customer will certify to Liquid Audio that all copies of the Software have been returned to Liquid Audio or destroyed. The exercise by Liquid Audio of any remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The rights and obligations of the parties under Sections 2, 4, 5, 6, 7 and 10 will survive the expiration or termination of this Agreement.
8. GOVERNMENT LICENSEE. If the Software is licensed by or for any unit or agency of the United States Government, then the Software shall be classified as "commercial computer software", as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the "FAR") and supplements thereto, including the Department of Defense ("DoD") FAR Supplement (the "DFARS"). Liquid Audio represents that the Software was developed entirely at private expense, and that no part of the Software was first produced in the performance of a United States Government contract. If the Software is supplied for use by DoD, the Software is delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227-7013(c)(1)(ii) (OCT 1988), as applicable. If the Software is supplied for use by a Federal agency other than DoD, the Software is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable.
9. EXPORT CONTROL. Customer agrees to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any technical data or any Software in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained to the countries specified in the applicable U.S. Export Administration Regulations (or any successor supplement or regulations).
10. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Except for disputes as to the ownership of intellectual property rights in the Software, all disputes arising out of or relating to this Agreement or its interpretation shall be finally settled by binding arbitration in Redwood City, California pursuant to the Commercial Arbitration rules of the American Arbitration Association by one arbitrator. All arbitrators will have knowledge of and experience regarding the computer industry. Requests for equitable relief shall be first submitted to the arbitrator. The arbitration award may be enforced in any court of competent jurisdiction. Customer hereby consents to the personal and exclusive jurisdiction and venue of the state and federal courts located in San Mateo County of the State of California.
11. MISCELLANEOUS. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter. Any modifications of this Agreement must be in writing. This Agreement will bind and inure to the benefit of each party's successors and assigns, provided that Customer may not assign this Agreement, in whole or in part, without Liquid Audio's prior written consent. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. No purchase order, invoice or similar document will by its terms amend or supplement the terms and conditions of this Agreement, even if accepted or signed by the receiving party. Performance of this Agreement may be suspended due to any force majeure event.
CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. THE SOFTWARE AND THE ACCOMPANYING DOCUMENTATION ARE PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
