This End User License Agreement ("Agreement") is entered into and effective immediately between you, the individual or business installing this software (hereinafter, "You") and Kumulipo, Inc., an Oregon corporation ("Kumulipo").
RECITALS
Kumulipo is the developer and sole owner of certain audio editing software. This software and related materials is being marketed by Kumulipo under the trademark "Jasmine."
You have requested the right to download, install and use a demonstration version of Jasmine" on your computer, subject to the following licensing terms and conditions. By clicking the "I AGREE" button at the end of this Agreement, you are agreeing to be bound by the terms of this license agreement. If you decide to acquire a perpetual license for a fully functional version of Jasmine, you will also be agreeing to the additional provisions below applicable to perpetual licenses.
TERMS
In consideration of the warranties, covenants, terms and conditions below, the parties agree as follows:
1. Grant of License. Kumulipo hereby grants you, subject to the terms and conditions below, a limited, personal, nontransferable, nonexclusive license to install and use a single copy of this version of Jasmine on your own computer, and to make a single backup copy. Under this license, you may not: (1) make copies of Jasmine except as permitted above; (2) sublicense, rent, lease, lend or otherwise transfer Jasmine or your rights under this license without the prior written consent of Kumulipo; (3) remove or obscure the Kumulipo copyright and trademark notices; or (4) convert Jasmine from one form to another or attempt to modify, reverse engineer, reverse compile, change or reverse assemble it.
2. Term of License.
A. Demonstration Version. The above license is effective immediately. It grants you the license to use a fully functional version of Jasmine for 60 days, and a limited- functionality version of Jasmine for an additional 120 days. Jasmine may automatically deactivate or reduce its functionality in accordance with the above license limitations.
B. Full License Version. In the event you elect to purchase a perpetual license for Jasmine and acquire the activation code for such a license, the above license shall remain effective perpetually, unless otherwise terminated under the termination provisions set forth below.
3. Your Obligations to Protect Jasmine. Kumulipo is the sole owner of Jasmine (including all customized and derivative work) and all rights not specifically granted in this license are reserved by Kumulipo. Kumulipo has expended substantial sums and devoted substantial resources to the development of Jasmine and has substantial proprietary interests and valuable trade secrets in it. You hereby covenant to use Jasmine only for the purposes set forth in this Agreement and for no other purpose. As a continuing condition of this license, you also covenant to use your best efforts to protect Jasmine from unauthorized use, reproduction, publication or distribution.
4. Warranty of Lawful Use. Although Jasmine may be used to reproduce and edit materials subject to third party copyrights, Jasmine is licensed to you only for reproduction and editing of materials in the public domain, materials for which you own the copyright, or materials you are authorized or legally permitted to reproduce and modify. You hereby warrant that you will use Jasmine only in a lawful manner, without violating the copyright interests of any third party.
5. Export Law Assurances. You may not use or otherwise export or reexport Jasmine except as authorized by United States law and the laws of the jurisdiction in which Jasmine was obtained. In particular, but without limitation, Jasmine may not be exported or re-exported: (a) into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria, or the Taliban Controlled areas of Afghanistan) or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person=s List or Entity List. By using Jasmine, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
6. U.S. Government Restricted Rights. Jasmine and any related documentation are "Commercial Items" as that term is defined at 48 C.F.R. '2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. '12.212 or 48 C.F.R. '227.7202, as applicable. Consistent with 48 C.F.R. '12.212 or 48 C.F.R. ''227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only such rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
7. Termination. This Agreement and the Jasmine license granted herein may be terminated at any time by Kumulipo in the event it determines that you have violated any term or condition of this Agreement. Upon termination of this Agreement, you shall immediately destroy all copies of Jasmine in your possession or control, and shall confirm the completion of such destruction with Kumulipo.
8. Disclaimer of All Warranties/Limitation of Remedies. You hereby acknowledge that Jasmine is being made available to you on an AS IS basis, and that Kumulipo makes no warranties, express or implied, with respect to Jasmine. KUMULIPO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND/OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES/CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, AS MAY BE ADOPTED BY THE STATES FROM TIME TO TIME. IN NO EVENT WILL KUMULIPO BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE, OR INABILITY TO USE, JASMINE, EVEN IF KUMULIPO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR, KUMULIPO SHALL NOT BE LIABLE FOR THE LOSS OF INFORMATION OR DATA ARISING FROM THE USE OR INABILITY TO USE JASMINE. KUMULIPO'S MAXIMUM LIABILITY FOR ANY CLAIM ARISING FROM THE LICENSE OR USE OF JASMINE, INCLUDING, WITHOUT LIMITATION, CLAIMS BASED UPON PRODUCT LIABILITY, NEGLIGENCE OR OTHER TORT CLAIMS, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO KUMULIPO UNDER THIS AGREEMENT. The remedy set forth above is exclusive and in lieu of all others, oral or written, expressed or implied. No Kumulipo distributor, employee, or agent is authorized to extend any warranty or to modify or extend the above remedy in any manner. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
9. Indemnification. You acknowledge that your use of Jasmine under this Agreement is personal to you and is not intended to be used for the benefit of any third party. You hereby agree to indemnify and hold Kumulipo harmless against any claim, expense, loss, damage, or other liability, including, without limitation, attorneys' fees, arising out of or connected with your use of Jasmine.
10. Remedies for Breach. In the event you breach any warranty, covenant or other term of this Agreement, Kumulipo shall be entitled to terminate this Agreement and the license hereunder immediately and to seek all legal and equitable remedies available to it under Oregon law and applicable laws of the United States. You acknowledge that your breach of this Agreement would result in irreparable and continuing damage to Kumulipo in an amount not readily ascertainable and for which there would be no adequate remedy at law. In the event of such a breach, Kumulipo shall have the right to seek immediate injunctive relief, in addition to its other remedies hereunder.
11. Attorneys' Fees. If either party to this Agreement breaches any term of this Agreement, then the other party shall be entitled to recover all expenses of whatever form or nature, costs and attorneys' fees reasonably incurred to enforce the terms of this Agreement, whether or not suit is filed, including such costs or fees as may be awarded in arbitration or by a court at trial or on appeal. In addition, in the event either party to this Agreement becomes a debtor subject to the United States Bankruptcy Code, the non-debtor party shall be entitled to recover any expenses, costs and fees, including attorneys' fees, incurred in connection with enforcing its rights against the debtor party, whether those rights arise under this contract or involve matters arising solely under the Bankruptcy Code.
12. Non-Waiver. The failure or delay of any party to require performance of, or to otherwise enforce, any condition or other provision of this Agreement shall not waive or otherwise limit that party's right to enforce, or pursue remedies for the breach of, any such provision or condition. Any waiver by any party of any particular condition or provision of this Agreement, including this non-waiver provision, shall not constitute a waiver or limitation on that party's right to enforce performance of, or pursue remedies for the breach of, any other condition or provision of this Agreement.
13. Successor Interests. This Agreement is not voluntarily assignable or transferable by you without the express written consent of Kumulipo. Subject to this restriction, this Agreement is binding upon and shall inure to the benefit of the heirs, successors, assigns, bankruptcy estates, administrators, personal representatives, and executors of each of the parties.
14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Oregon without regard to Oregon=s conflict of law provisions, and by applicable federal copyright law. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
15. Jurisdiction, Venue. The parties agree that any suit, action or arbitration proceeding arising out of or relating to this Agreement shall be brought in Multnomah County, Oregon, and the parties expressly consent to the personal jurisdiction over them of any state or federal court in Multnomah County, Oregon.
16. Paragraph Headings. All paragraph headings in this Agreement appear for convenience of reference, and shall not affect the meaning or interpretation of the Agreement.
17. Amendments. This Agreement may be amended or modified only by a written instrument executed by the parties which expressly states the intent of the parties to modify or amend this Agreement.
18. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of the Agreement and supersedes all prior discussions, negotiations, understandings, representations and agreements, whether oral or written. All terms of this Agreement are contractual and not mere recitals.
19. Electronic Execution. Execution of this Agreement shall occur and may be evidenced by transmission of your electronic assent to its terms through your clicking the "I AGREE" button. The party executing this Agreement hereby warrants that he or she is either the individual entering into this Agreement or is the authorized officer or principal of the licensee installing this software.
