IMPORTANT -- READ CAREFULLY: BY CLICKING ON THE "Yes" BUTTON AND DOWNLOADING A GRATUITOUS COPY OF THE PREVIEW VERSION OF TERRAFLEX DATA SYSTEMS, INC.'S ("TERRAFLEX") SOFTWARE KNOWN AS TheDJ PLAYER SOFTWARE IN OBJECT CODE FORM AND EXPLANATORY DOCUMENTS (COLLECTIVELY THE "SOFTWARE"), YOU ("LICENSEE") ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT"). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "No" BUTTON TO EXIT. IF LICENSEE IS DEEMED TO HAVE ORDERED THE SOFTWARE, TERRAFLEX'S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY TERRAFLEX, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. LICENSE GRANT: Subject to the terms of this Agreement, Terraflex hereby grants Licensee a limited, personal, non-exclusive, nontransferable, nonsublicensable, royalty-free license to download and use one copy of the Software on Licensee's computer system for evaluation and trial purposes only. Licensee may make one copy Software for archival purposes, provided any copy made must contain all of the original Software's proprietary notices.
2. LIMITATIONS. Licensee may not, directly or indirectly: (a) modify, translate, create derivative works based on; or (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software (except to the extent applicable laws specifically prohibit such restriction); or (c ) copy (except for archival purposes as set forth above) Software; or (d) assign, rent, lease, distribute, transfer or otherwise transfer rights in this Agreement to the Software; or use the Software for timesharing or service bureau purposes; or permit third any third party to use the Software; or remove any proprietary notices or labels on the Software.
3. SOFTWARE SUPPORT AND MAINTENANCE: Terraflex is not obligated to provide any support, maintenance, enhancements, new versions or updates to Licensee for the Software. However, any maintenance or updates provided by Terraflex shall be covered by the terms of this Agreement, unless otherwise stated by Terraflex in writing.
4. DISCLAIMER OF WARRANTY: The parties acknowledge that Terraflex is making software available to Licensee gratuitously. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW, TERRAFLEX FURTHER DISCLAIMS ALL EXPRESSED AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO LICENSEE AND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
5. TERMINATION. This Agreement shall terminate one year from the date the Software is downloaded or received by Licensee, or at such time that Terraflex asks Licensee to return or destroy the Software, whichever occurs first. Licensee may terminate this Agreement and the license granted herein at any time by destroying or returning to Terraflex all copies of the Software.
6. EFFECT OF TERMINATION. Upon termination of this Agreement, Licensee shall immediately discontinue the use of the Software and shall within ten (10) days either return to Terraflex, or delete, all full or partial copies of the Software, and any related materials provided by Terraflex. The provisions of sections 2-12 shall survive any termination of this Agreement.
7. LIMITATION OF REMEDIES AND DAMAGES. THE ENTIRE RISK ARISING OUT OF THE USE QUALITY, NONPERFORMANCE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH LICENSEE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR BODILY INJURY, IN NO EVENT SHALL TERRAFLEX OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS DATA OR INFORMATION, COST OF PROCURMENT OF SUBSTITUTE GOODS, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF TERRAFLEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
8. EXPORT CONTROLS. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and not to export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations (including, without limitation, export or re-export to destinations prohibited either in Country Groups Q, S, W, Y or Z country specified in the then current Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations), or the OFAC regulations found at 31 C.F.R. 500 et seq.). By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any restricted country or on any such list.
9. GOVERNING LAW; ATTORNEYS FEES: This Agreement shall be governed by the laws of the State of California without regard to conflicts of laws or the United Nations Convention of Contracts for the International Sale of Goods and Licensee further consents to jurisdiction by the state and federal courts sitting in the State of California. If either Terraflex or Licensee employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees.
10. MISCELLANEOUS: This Agreement constitutes the complete and exclusive agreement between Terraflex and Licensee with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. This Agreement may not be modified or waived except in a writing duly signed by an authorized representative of Terraflex and Licensee. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability (i) of such provision under other circumstances, or (ii) of the remaining provisions hereof under all circumstances. Headings shall not be considered in interpreting this Agreement.
11. U.S. GOVERNMENT END USERS. As defined in FAR section 2.101, the software and accompanying documentation licensed in this agreement are "commercial items" and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the US. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
