END-USER LICENSE AGREEMENT (this "License Agreement") is between Encore Software, Inc. ("Encore") and Encore's licensors (together with Encore, collectively "Licensor"), and Consumer ("You").
THIS LICENSE AGREEMENT RELATES TO ALL COMPUTER SOFTWARE, WHETHER DOWNLOADED ELECTRONICALLY (ELECTORIC SOFTWARE DELIVERY SHALL BE REFERRED TO HEREIN AS "ESD") OR CONTAINED WITHIN A PHYSICAL CD-ROM, AND THE ACCOMPANYING USER DOCUMENTATION CONTAINED EITHER WITHIN THE DOWNLOADED CONTENT OR ON THE PHYSICAL CD-ROM (THE "SOFTWARE"). THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD) TO YOU. BY USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND LICENSOR CONCERNING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT INSTALL THIS SOFTWARE, AND REMOVE ALL PORTIONS OF THE SOFTWARE, IF ANY, THAT HAVE BEEN INSTALLED. IF YOU ARE THE ORIGINAL INSTALLER OF THE SOFTWARE AND DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, YOU MAY PROMPTLY RETURN THE SOFTWARE FOR A FULL REFUND OF THE AMOUNT PAID (BUT NOT YOUR SHIPPING COSTS, IF ANY) BY PROVIDING THE FOLLOWING MANDATORY ITEMS: (1) IF A PHYSICAL CD-ROM WAS PURCHASED, PROVIDE TO ENCORE (A) THE COMPLETE PRODUCT IN GOOD CONDITION (ALL DISCS, MANUALS AND PRINTED MATERIALS); (B) THE BOX WITH THE UPC CODE INTACT; (C) YOUR ORIGINAL DATED RECEIPT; AND (D) A LETTER OR CARD WITH YOUR FULL NAME AND RETURN MAILING ADDRESS; OR (2) IF THE SOFTWARE WAS ELECTRONICALLY DOWNLOADED, PROVIDE TO THE ESD PROVIDER FROM WHICH YOU PURCHASED THE SOFTWARE (A) AN E-MAIL ADDRESSED TO THE ESD PROVIDERS WEBSITE WHICH INCLUDES YOUR FULL NAME, RETURN MAILING AND E-MAIL ADDRESS AND A REPRESENTATION THAT THE SOFTWARE WAS NOT INSTALLED. IN THE EVENT THAT A PHYSICAL CD-ROM WAS PURCHASED, PLEASE SEND THE MANDATORY ITEMS TO THE FOLLOWING ADDRESS: ENCORE SOFTWARE, INC., 999 N. Sepulveda Blvd. Suite 700, El Segundo, CA 90245.
1. License Grant. Licensor hereby grants to you, and you accept, a non-exclusive license to use the Software in machine-readable, object code form only (collectively referred to as the "Software"). Unless otherwise stipulated in the license agreement accepted by you in connection with the ESD (the "ESD Agreement"), the Software may be used only on a single computer owned, leased, or otherwise controlled by you; or in the event of inoperability of that computer, on a backup computer selected by you. Unless otherwise stipulated in the ESD Agreement, neither concurrent use on two or more computers nor use on a local area network or other network is permitted. You agree that you will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this License Agreement, except that you may permanently transfer all of your rights under this License Agreement, provided that you retain no copies, transfer all of the Software (including all related media and printed materials and any upgrades), and the transferee agrees to the terms of this License Agreement. You agree that you will not reverse assemble, reverse compile, or otherwise translate the Software.
2. Licensor's Rights. You acknowledge and agree that the Software is the proprietary product of Licensor protected under U.S. copyright law. You further acknowledge and agree that all right, title and interest in and to the Software, including any associated intellectual property rights, are and shall remain with Licensor. This License Agreement does not convey to you an interest in or to the Software, but only a revocable limited right of use revocable in accordance with the terms of this License Agreement. You are responsible for, and must use your best efforts to prevent the breaking of these terms by any other person.
3.1. Scope of Rights. You may:
a. Install/download the Software on your computer;
b. Retain the Software CD, if any, for backup purposes;
c. If not copy protected, make one copy of the Software on a second CD for the purpose of backup in the event the Software CD is damaged or destroyed (retaining any copyright and other proprietary notices that appear on the original CD); and
d. Make one copy of the User's Manual for backup purposes so long as any such copies of the Software or the User's Manual include Licensor's copyright and other proprietary notices.
e. Do anything which is expressly permitted under the ESD Agreement whether conflicting with this License Agreement or not.
3.2. Restrictions on Use. You may not:
a. Use, copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor;
b. Reverse assemble, reverse compile, or otherwise translate the Software;
c. Transfer, lease, assign, or sublicense your rights except for a transfer of the Software in its entirety.
d. Reproduce, republish or reuse any photograph or any other element or content of the Software, individually or in combination, but applicable copyright law may give you such rights. If you are uncertain about your rights, please contact an attorney.
e. Do anything which is prohibited by the ESD Agreement.
4. Fees and Payments. The license fees paid by you are paid in consideration of the licenses granted under this License Agreement and any ESD Agreement.
5. Term. This License Agreement is effective upon your opening/downloading of this Software, as applicable, and shall continue until terminated. You may terminate this License Agreement at any time by following those steps set forth in the second paragraph of this License Agreement which address what to do in the event that the terms hereof are not accepted by you. Licensor may terminate this License Agreement upon the breach by you of any term hereof. Upon such termination by Licensor, you agree to return to Licensor the Software and all copies and portions thereof, and/or to delete from your computers hard drive any and all electronic copies of the Software. There shall be no refund in the event of termination under the provisions of this paragraph.
6. Limited Warranty.
a. Excluding the internet website link(s), Encore warrants, for your benefit alone, for a period of 90 days from the date of commencement of this License Agreement (referred to as "Warranty Period") that the Software and the Software CD-ROM in which the Software is contained, if any, is free from defects in material and workmanship. If during the Warranty Period, a defect in the Software appears, you may return the physical CD-ROM containing the Software to Encore or notify the ESD provider from which you purchased the electronic download of the Software of such defect for either replacement, or, if so elected by Encore or the ESD Provider, as applicable, refund of amounts paid by you under this License Agreement or the ESD Agreement, respectively. You agree that the foregoing constitutes your sole and exclusive remedy for breach by Encore of any warranties made under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE SOFTWARE, AND THE SOFTWARE CONTAINED THEREIN, ARE LICENSED "AS IS," AND ENCORE DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
b. This product may contain hyperlinks to web sites on the World Wide Web (the "Linked Sites"). You acknowledge and agree that (i) the Linked Sites are not under the control of Encore; (ii) Encore is not responsible or liable for the content, advertising, expiration, availability, changes or updates related to any Linked Sites or hyperlink contained in a Linked Site, or any goods or services made available on such Linked Sites; and (iii) Encore is not responsible for webcasting, software, download or any other form of transmission or media received from any Linked Site. Linked Sites are provided to you only as a convenience, and the inclusion of any Linked Sites does not imply endorsement by Encore of any such Linked Sites. You
