IMPORTANT READ CAREFULLY: It is important for you to read and understand all of the provisions stated below in this End User License Agreement (referred to below as the "Agreement"). At the end of this Agreement, you will be asked to either accept or not accept its terms. This software will not install on your computer, and you may not use this software, unless you accept all terms of this Agreement. Your click of the "I accept" button will be deemed your signature that you accept all terms of this Agreement. This Agreement is a legal agreement between you (whether an individual, a business entity, or otherwise) and Metabyte, Inc. (referred to below as "METABYTE") for the software and any related documentation or other materials in electronic and/or printed form, if any, accompanying this Agreement (collectively referred to below as the "Software"), together with the 3D glasses shipped with the Software. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE SOFTWARE PACKAGE AND THE ACCOMPANYING ITEMS (INCLUDING WRITTEN MATERIALS AND CONTAINERS) TO METABYTE, INC. AT 39350 CIVIC CENTER DRIVE, SUITE 200, FREMONT, CALIFORNIA U.S.A. 94538 AND YOUR MONEY WILL BE REFUNDED.
1. LICENSE. The Software, regardless of the media on which it is distributed, is licensed to you on a non-exclusive basis by METABYTE solely for installation and use on a single computer. The Software is not sold to you. You own the medium on which the Software is recorded but METABYTE and its suppliers retain title to the Software and related documentation, together with all copyrights and other intellectual property rights therein. All intellectual property and rights not expressly granted herein are reserved by METABYTE.
2. RESTRICTIONS. The Software contains copyrighted material, trade secrets and other proprietary material. You may not: (i) decompile, reverse engineer or dis-assemble the Software; or (ii) modify, network, rent, or distribute the Software, or create derivative works based upon the Software. You may copy the Software for backup purposes only by making not more than three (3) copies of the Software, each of which must contain all of METABYTE'S copyright, patent, trademark, startup and/or other notices contained therein. You must maintain and will not alter or remove any copyright, patent, trademark and/or other notices contained in and/or on the Software. All other rights are expressly reserved by METABYTE.
3. TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying the Software and the related documentation. This Agreement will terminate immediately and automatically without notice from METABYTE if you fail to comply with any provision of this Agreement. Upon termination, you must destroy the Software and the related documentation.
4. EXPORT LAW ASSURANCE. You agree and certify that neither the Software nor any other technical data received from METABYTE, nor the direct product thereof, will be exported outside the United States, or if you rightfully obtained the Software outside the United States, will not be reexported, except as permitted by the laws and regulations of the United States and the jurisdiction in which you obtained the Software.
5. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is provided with RESTRICTED RIGHTS. The use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227.7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 49 CFR 52.227-19, as applicable. The manufacturer of the Software is METABYTE, INC. 39350 Civic Center Drive, Suite 200, Fremont, California U.S.A., 94538.
6. LIMITED WARRANTY ON MEDIA. METABYTE warrants that the tangible media on which the Software is recorded to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of receipt. METABYTE 's entire liability and your exclusive remedy will be the replacement of the media not meeting METABYTE 's limited warranty and which is returned to METABYTE or any METABYTE-authorized representative with a copy of the receipt. METABYTE will have no responsibility to replace any media damaged by accident, abuse or misapplication. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.
7. DISCLAIMER OF WARRANTY ON SOFTWARE. You expressly acknowledge and agree that the use of the Software is solely at your own risk. The Software, accompanying 3D glasses and related documentation are provided "AS IS" and without warranty of any kind. METABYTE AND ITS LICENSEES, LICENSORS AND DISTRIBUTORS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. METABYTE DOES NOT WARRANT THAT THE FUNCTIONS OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. FURTHER, NEITHER METABYTE, NOR ITS LICENSEES, LICENSORS OR DISTRIBUTORS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, RELIABILITY, OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. MEDICAL RISKS OF USING THE SOFTWARE. YOU ARE ADVISED AS FOLLOWS AND AGREE TO ASSUME ALL RELATED RISKS INCIDENT TO YOUR USE OF THE SOFTWARE.
WARNING: DO NOT USE THIS PRODUCT IN ANY SITUATION WHERE UNIMPAIRED VISUAL PERCEPTION IS NECESSARY. SOME PEOPLE MAY EXPERIENCE NAUSEA AND/OR DISORIENTATION DURING OR IMMEDIATELY FOLLOWING USE OF THIS PRODUCT AND/OR SIMILAR PRODUCTS. DO NOT USE THIS PRODUCT IF YOU ARE ILL, DIZZY OR NAUSEOUS. IF YOU FEEL NAUSEOUS OR DIZZY (OR ANY OF THE OTHER SYMPTOMS LISTED BELOW)WHEN USING THIS PRODUCT, DISCONTINUE USE IMMEDIATELY, DO NOT ENGAGE IN ANY POTENTIALLY HAZARDOUS ACTIVITY (FOR EXAMPLE, DRIVING A VEHICLE) UNTIL YOUR DISCOMFORT HAS COMPLETELY GONE AWAY. IF YOU EXPERIENCED SUCH DISCOMFORT, DO NOT USE THIS PRODUCT AGAIN WITHOUT DISCUSSING YOUR DISCOMFORT WITH YOUR PHYSICIAN.
WARNING FOR EPILEPTICS AND FAMILY MEMBERS. IF YOU OR ANY MEMBER OF YOUR FAMILY HAS A HISTORY OF EPILEPSY, CONSULT A PHYSICIAN BEFORE USING THIS PRODUCT OR ANY OTHER COMPUTER GAME PRODUCT. CERTAIN PEOPLE MAY SUFFER EPILEPTIC SEIZURES OR OTHER FORMS OF ILLNESS WHEN VIEWING VIDEO GAMES OR TELEVISION IMAGES WITH FLASHING PATTERNS OF LIGHT.
WARNING FOR ALL USERS. IMMEDIATELY DISCONTINUE USE OF THIS PRODUCT, AND SEE A PHYSICIAN BEFORE USING IT AGAIN, IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS:
DIZZINESS, INVOLUNTARY MOVEMENTS, NAUSEA, CONFUSION, DISORIENTATION, EYE OR MUSCLE TWITCHING, CONVULSIONS, LOSS OF AWARENESS OF YOUR SURROUNDINGS
TO MINIMIZE THE POSSIBILITY OF ANY OF THE ABOVE SYMPTOMS, ADJUST YOUR COMPUTER MONITOR REFRESH RATE TO THE HIGHEST POSSIBLE SETTING. CONSULT THE MANUAL FOR YOUR MONITOR FOR INSTRUCTIONS AS TO HOW TO DO THIS.
CHILDREN UNDER THE AGE OF FIVE YEARS SHOULD NOT USE THIS PRODUCT WITHOUT A PHYSICIAN'S PERMISSION.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL METABYTE, ITS LICENSEES, LICENSORS OR DISTRIBUTORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE SOFTWARE OR ITS DOCUMENTATION, EVEN IF METABYTE AND/OR ITS LICENSEES, LICENSORS AND DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE ABOVE LIMITATION OR EXCLUSION OF LIABILITY AND DAMAGES, SO THE ABOVE MAY NOT APPLY TO YOU. IN NO EVENT WILL METABYTE'S AND ITS LICENSEES, LICENSORS AND DISTRIBUTORS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, METABYTE'S NEGLIGENCE, INTELLECTUAL PROPERTY INDEMNITY, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, STATUTORY LIABILITY AND/OR ALL OTHER LEGAL THEORIES OF LIABILITY. THE ALLOCATION OF RISK BETWEEN THE PARTIES STATED HEREIN IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, IS REFLECTED IN METABYTE'S PRICING OF THE SOFTWARE AND ALL RELATED MATERIALS SHIPPED THEREWITH, AND WILL BE EFFECTIVE NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL AND/OR OTHER REMEDIES HEREIN.
10. HIGH RISK ACTIVITIES. You acknowledge that the Software was not designed for use in conjunction with and/or as a component of Life Support Devices or High Risk Activities (as defined below) and that METABYTE has made no representations to the contrary. Life Support Devices are defined as devices or products which are, (a) intended for surgical implant into the body, (b) employed to support or sustain life, (c) used to measure, diagnose or evaluate the tissue, systems or functions of the human body. Further, you acknowledge that the Software was not designed for use in or as components of any hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, air traffic control, aircraft navigation or communications systems, weapons systems, or any other environments where the failure of the Software could lead to death, personal injury, or other physical and/or environmental damage (collectively "High Risk Activities"). You agree that use of the Software in conjunction with Life Support Devices and/or devices or products used in High Risk Activities will be at your sole risk and you agree to indemnify and hold METABYTE harmless from and against any and all claims, suits, losses and/or damages, including, without limitation, court costs, reasonable attorneys' fees and expert witness fees arising out of your use of the Software in conjunction with any Life Support Device and/or any device or product used in High Risk Activities.
11. CONTROLLING LAW AND SEVERABILITY. For copies of the Software acquired in the United States, this Agreement will be governed by the laws of the United States and the State of California without reference to conflicts of laws or the 1980 U.N. Convention on Contracts for the International Sale of Goods. If you acquired the Software outside the United States, local law may apply. If a court of competent jurisdiction finds any provision of this Agreement, or part thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. In the event of any conflict between any provision of this Agreement and any applicable law, the provision or provisions of this Agreement affected will be modified to remove such conflict and permit compliance with such law and as so modified this Agreement will continue in full force and effect.
12. JURISDICTION AND ARBITRATION. Except for claims for injunctive or other equitable relief, any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, will be settled by arbitration before a single arbitrator to be held in Alameda County, California, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator's decision will be final, conclusive and binding on the parties to the arbitration, and judgment may be entered thereon in any court of competent jurisdiction. You consent to the exclusive jurisdiction and venue of courts in Alameda County, State of California, U.S.A. in all disputes arising out of this Agreement and/or your relationship with METABYTE to the extent that such disputes are not subject to arbitration as provided above.
13. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the Software and supersedes any prior understandings and agreements, oral or written. No amendment to or modification of this Agreement will be binding unless in a writing signed by a duly authorized representative of METABYTE.
14. OFFICIAL LANGUAGE. The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, have been and will be written in the English language only. Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui s'y rattache, soient rediges en langue anglaise.
All METABYTE product names are trademarks or registered trademarks of Metabyte, Inc.
Copyright c 2001 Metabyte, Inc., All rights reserved.
