THIS END USER SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT") IS ENTERED INTO BY AND BETWEEN SPATIALIZER AUDIO LABORATORIES, INC. ("SPATIALIZER") AND YOU ("LICENSEE"). IF YOU ARE USING THE SOFTWARE ON BEHALF OF A COMPANY, THE COMPANY IS THE LICENSEE. IF YOU ARE USING IT AS AN INDIVIDUAL, YOU ARE THE LICENSEE. BY DOWNLOADING AND CLICKING ACCEPTANCE OR INSTALLING AND USING THE SOFTWARE, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. THIS WILL BE A LEGALLY BINDING AGREEMENT BETWEEN LICENSEE AND SPATIALIZER. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE DOWNLOADING AND CLICKING LICENSEEÆS ACCEPTANCE AND/OR USING THE SOFTWARE. IF LICENSEE DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST STOP USING THE SOFTWARE NOW, AND SHALL NOT USE THE SOFTWARE IN THE FUTURE.
1. GRANT OF LICENSE
Subject to the terms and conditions of this Agreement, Spatializer hereby grants to Licensee a personal, non-exclusive, non-transferable license to install and use SpatializerÆs proprietary audio signal processing software and any related documentation (collectively, the "Software"). This license right is limited to access and use of the Software on a single PC or other audio player platform. Licensee shall have no other right to use, reproduce, distribute, display or publicly perform the Software, or modify or create derivative works of the Software.
2. SCOPE OF LICENSE
Licensee may use and operate a single copy of the Software on a single PC or other audio platform. Licensee may make one (1) copy of the Software into any machine-readable format for installation and backup purposes only. Licensee shall not modify, adapt, translate, lease, loan, resell for profit, distribute, or create derivative software based on all or any part of the Software. Licensee shall not remove or modify, or attempt to remove or modify, any proprietary notices contained in the Software. Licensee may permanently transfer all of its rights under this Agreement, provided Licensee (i) retains no copies; (ii) transfers all of the Software and documentation, in whole; and (iii) the recipient agrees to abide by all of the terms and conditions of this Agreement. Licensee shall not sublicense, assign or transfer the license to the Software. Any attempt to sublicense, assign or transfer any of LicenseeÆs rights, duties or obligations hereunder is void and a breach of this Agreement. Licensee may not hypothecate, lease, loan or otherwise convey the Software or any portion thereof to anyone, and under no circumstance may Licensee use or allow the use of the Software in any manner other than as expressly set forth above. The Software contains trade secrets, and in order to protect them, Licensee shall not decompile, reverse engineer or disassemble the Software, or otherwise reduce the Software to a human perceivable form.
3. TITLE
The Software and any copies of the Software, in whole or in part, including translations, compilations, partial copies, modifications, updates, any images and ôapplets,ö photographs, animations, video, audio, music and text incorporated in the Software are the property of Spatializer. Licensee has only the limited rights granted by this Agreement. Licensee is not an owner of any copy of the Software. Spatializer reserves all rights not expressly granted to Licensee hereunder. The Software is protected by United States Copyright Law and international treaties relating to protection of copyright.
4. TERMINATION
Licensee may terminate its license to the Software at any time by destroying the Software and accompanying documentation, together with any copies, in any form. This License shall terminate automatically if Licensee fails to comply with any term or condition of this Agreement. Spatializer may terminate this Agreement at any time upon notice to Licensee. Licensee agrees upon such termination to destroy the Software and accompanying documentation, together with any copies, in any form.
5. DISCLAIMER OF WARRANTY
Spatializer does not warrant that the Software (including any documentation) will meet Licensee's requirements or that the operation of the Software will be uninterrupted or error free. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED WITH RESPECT TO THE SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH THE LICENSEE AND SHOULD THE SOFTWARE PROVE DEFECTIVE, LICENSEE (AND NOT SPATIALIZER OR ANY AUTHORIZED DISTRIBUTOR OR DEALER) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION UNLESS OTHERWISE AGREED. No oral or written information or advice given by Spatializer, its marketers, distributors, agents or employees shall create a warranty or in any way increase the scope of Licensee's rights set forth herein, and Licensee may not rely on any such information or advice.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL SPATIALIZER OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR COST OF OBTAINING SUBSTITUTE GOODS ARISING OUT OF OR RELATING TO THE SOFTWARE, OR THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF SPATIALIZER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing limitations of liability shall apply notwithstanding any failure of essential purpose of any limited remedy stated herein. Spatializer's liability to Licensee or any third party arising out of or related to this Agreement however caused and arising under any theory of liability, whether based in contract, tort (including negligence), or otherwise shall not exceed in aggregate the Licensee Fees paid by Licensee for the Software. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE.
7. GOVERNMENT RESTRICTED RIGHTS LEGEND AND EXPORT LAWS
If Licensee is acquiring the Software on behalf of any part of the United States Government, the following provisions apply. The Software and accompanying documentation are deemed to be "commercial software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and/or the accompanying documentation by the U.S. Government or any of its agencies 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. The Software is controlled by the United States export laws and regulations. Licensee may not export or reexport the Software except in full compliance with all United States laws and regulations and executive orders, including in particular Parts 740, 742 and 744 of the Export Administration Regulations of the U.S. Department of Commerce. No Software may be exported or reexported into (or to a national or resident of) any country to which the U.S. embargoes goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders.
8. MISCELLANEOUS
This Agreement constitutes the complete and exclusive understanding and agreement between Spatializer and Licensee relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements, and communications, and/or advertising with respect to such subject matter. This Agreement shall not be amended, modified, or waived, unless done so in writing and signed by an authorized Spatializer employee. If any provision of this Agreement is held unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement is governed by the laws of the State of California, without reference to its conflict of law principles, and the 1980 United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.
Spatializer Audio Laboratories, Inc., 900 Lafayette Street, Suite 700, Santa Clara CA 95050 (February 2001)
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