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THIS MEDIAFOUR END-USER LICENSE AGREEMENT (THE "LICENSE" OR "AGREEMENT") IS A BINDING AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) AND MEDIAFOUR CORPORATION ("MEDIAFOUR") REGARDING ACCEPTABLE USE OF THIS SOFTWARE PRODUCT (THE "SOFTWARE"). BY PROCEEDING WITH THE INSTALLATION PROCEDURE, YOU INDICATE THAT YOU ACCEPT AND AGREE FULLY WITH THE FOLLOWING LICENSE PROVISIONS.
1. GRANT OF LICENSE Mediafour grants to you the non-exclusive right to use the Software on a single computer, or on a number of computers specified by the Software during the installation process, or on a number of computers specified in writing by Mediafour in a license addendum or alternate license issued specifically to you. The Software is "in use" on a computer when it is loaded into that computer's temporary memory (i.e., RAM) or long-term storage (e.g., hard disk, CD-ROM, or other storage device).
2. USE You shall retain full control over the use of the Software and you assume all risks and liability for results obtained by the use of the Software. Mediafour shall have no liability to you or to any third party for any ordinary, special, exemplary or consequential damages or losses (including, without limitation, damages for loss of business profits, any other pecuniary loss) which might arise directly or indirectly by reason of the use of inability to use the Software, even if Mediafour has been advised of the possibility of such damages. You shall indemnify, defend and hold Mediafour harmless from any loss, cost, damage, or expense, including attorneys' fees, arising from any claim asserted against Mediafour that is in any way associated with the matters set forth here in Paragraph 2. Because some states and countries do not allow the exclusion or limitation of liability of consequential or incidental damages, the above limitations may not apply to you.
3. TITLE No title to or ownership in the Software is transferred to you. Title to all applicable rights in patents, copyrights and trade secrets in the Software shall remain with Mediafour and/or any third party vendors ("Vendors") from whom Mediafour has acquired rights to license components of the Software. The Software provided to you hereunder is proprietary to Mediafour and/or Vendor, and you shall be bound by and observe the proprietary nature thereof as herein provided. Except as may be specifically authorized in writing by Mediafour or as otherwise provided herein, you shall not provide or otherwise make available the Software or copies thereof to any third party.
4. TERM AND TERMINATION The term of this License shall commence on the date of your purchase of the Software and shall continue until such time as you discontinue use of the Software, but otherwise shall be without restriction as to time. Mediafour shall have the right to terminate this License if you fail to comply with the License terms and conditions. Upon expiration of the License term or upon termination by reason of your default, you shall immediately return or destroy the Software and copies thereof as directed by Mediafour and, if requested by Mediafour, to certify in writing as to the destruction or return of the Software and all copies thereof. The provisions of this License which protect the proprietary rights of Mediafour shall continue in force after termination.
5. COPYRIGHT This computer software and all accompanying materials are COPYRIGHT © 2001-2004 MEDIAFOUR CORPORATION Any unauthorized duplication is prohibited. The Software is owned by Mediafour and is protected by United States copyright laws and international treaty provisions. Therefore, you must treat the Software like any other copyrighted material (e.g. a book or musical recording) except that you may either (a) make one copy of the Software solely for archival purposes, or (b) transfer the Software to the fixed storage media of a single computer, provided you keep the original solely for archival purposes. You shall not reproduce the written materials accompanying the Software. The unauthorized copying of the Software and the acquisition and/or use of unauthorized copies of the Software may be both criminal and civil offenses for which you may be liable for fines, damages and legal fees. If you attempt to use, copy or disclose any portion of the Software or any modification thereof or any of Mediafour's confidential information in a manner contrary to the terms of this License, Mediafour shall have the right, in addition to other legal remedies, to injunctive relief enjoining such acts without the posting of a bond.
6. OTHER RESTRICTIONS You may not rent or lease the Software to others, but you may transfer the Software and all accompanying written materials on a permanent basis provided you retain no copies and the recipient agrees to the terms of this Agreement. You may not reverse engineer, decompile, or disassemble the Software. If the Software has been updated, any transfer must include all versions.
7. PATENT AND COPYRIGHT INDEMNIFICATION Mediafour shall defend any action, suit, or proceeding brought against you so far as it is based on a claim that the Software delivered hereunder infringes any United States patent or copyright, provided that you promptly notify Mediafour of the action and you give full authority, information and assistance for the defense of the action. Mediafour shall pay all damages and costs awarded therein against you, but shall not be responsible for any compromise made without its consent. Mediafour may, at its option and expense, replace or modify the Software so that infringement will not exist or refund to you the price thereof as depreciated or amortized by an equal amount over the lifetime of the Software as established by Mediafour. Mediafour's commitment shall not extend to any infringement or claim thereof which is based upon the combination of the Software delivered hereunder with software not supplied by Mediafour.
8. LIMITED WARRANTY Mediafour warrants that the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days from the date of purchase. Some states and countries do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you.
9. CUSTOMER REMEDIES Mediafour's and its suppliers' entire liability and your exclusive remedy shall be, at Mediafour's option, either (a) return of the price paid by you for the Software, or (b) replacement of the Software, which is returned to Mediafour with a copy of your proof of purchase. Outside the United States, these remedies are not available without proof of purchase from an authorized non-U.S. source.
10. NO OTHER WARRANTIES Mediafour and its suppliers disclaim all other warranties, either express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with regard to the Software and the accompanying materials.
11. U.S. GOVERNMENT RESTRICTED RIGHTS The Software and documentation are provided with RESTRICTED RIGHTS. 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 48 CFR 52.227-19, as applicable. The manufacturer is Mediafour Corporation, 2800 University Ave #101, West Des Moines, IA 50266-1258.
12. SUCCESSORS, ASSIGNMENT This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. You shall not assign or sublicense your rights or obligations under this Agreement except as provided herein.
13. COMPLETE AGREEMENT This Agreement constitutes the entire agreement between Mediafour and you relative to this License. Any change hereto shall be effective only if in writing and signed by both a duly authorized agent of Mediafour and you.
14. SEVERABILITY If any provision or portion thereof of this License is held to be invalid, void or unenforceable, the remaining provisions of this License shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.
15. EXPORT OR REEXPORT You shall not, directly or indirectly, export or transmit any Mediafour product covered by this Agreement to any country to which such exportation is restricted by applicable regulations or statutes of the United States or any agency thereof, without the prior written consent of the U.S. Department of Commerce, Washington D.C. 20230 and of any other required governmental agency.
16. GOVERNING LAW This Agreement is governed by the laws of the state of Iowa.
1. GRANT OF LICENSE Mediafour grants to you the non-exclusive right to use the Software on a single computer, or on a number of computers specified by the Software during the installation process, or on a number of computers specified in writing by Mediafour in a license addendum or alternate license issued specifically to you. The Software is "in use" on a computer when it is loaded into that computer's temporary memory (i.e., RAM) or long-term storage (e.g., hard disk, CD-ROM, or other storage device).
2. USE You shall retain full control over the use of the Software and you assume all risks and liability for results obtained by the use of the Software. Mediafour shall have no liability to you or to any third party for any ordinary, special, exemplary or consequential damages or losses (including, without limitation, damages for loss of business profits, any other pecuniary loss) which might arise directly or indirectly by reason of the use of inability to use the Software, even if Mediafour has been advised of the possibility of such damages. You shall indemnify, defend and hold Mediafour harmless from any loss, cost, damage, or expense, including attorneys' fees, arising from any claim asserted against Mediafour that is in any way associated with the matters set forth here in Paragraph 2. Because some states and countries do not allow the exclusion or limitation of liability of consequential or incidental damages, the above limitations may not apply to you.
3. TITLE No title to or ownership in the Software is transferred to you. Title to all applicable rights in patents, copyrights and trade secrets in the Software shall remain with Mediafour and/or any third party vendors ("Vendors") from whom Mediafour has acquired rights to license components of the Software. The Software provided to you hereunder is proprietary to Mediafour and/or Vendor, and you shall be bound by and observe the proprietary nature thereof as herein provided. Except as may be specifically authorized in writing by Mediafour or as otherwise provided herein, you shall not provide or otherwise make available the Software or copies thereof to any third party.
4. TERM AND TERMINATION The term of this License shall commence on the date of your purchase of the Software and shall continue until such time as you discontinue use of the Software, but otherwise shall be without restriction as to time. Mediafour shall have the right to terminate this License if you fail to comply with the License terms and conditions. Upon expiration of the License term or upon termination by reason of your default, you shall immediately return or destroy the Software and copies thereof as directed by Mediafour and, if requested by Mediafour, to certify in writing as to the destruction or return of the Software and all copies thereof. The provisions of this License which protect the proprietary rights of Mediafour shall continue in force after termination.
5. COPYRIGHT This computer software and all accompanying materials are COPYRIGHT © 2001-2004 MEDIAFOUR CORPORATION Any unauthorized duplication is prohibited. The Software is owned by Mediafour and is protected by United States copyright laws and international treaty provisions. Therefore, you must treat the Software like any other copyrighted material (e.g. a book or musical recording) except that you may either (a) make one copy of the Software solely for archival purposes, or (b) transfer the Software to the fixed storage media of a single computer, provided you keep the original solely for archival purposes. You shall not reproduce the written materials accompanying the Software. The unauthorized copying of the Software and the acquisition and/or use of unauthorized copies of the Software may be both criminal and civil offenses for which you may be liable for fines, damages and legal fees. If you attempt to use, copy or disclose any portion of the Software or any modification thereof or any of Mediafour's confidential information in a manner contrary to the terms of this License, Mediafour shall have the right, in addition to other legal remedies, to injunctive relief enjoining such acts without the posting of a bond.
6. OTHER RESTRICTIONS You may not rent or lease the Software to others, but you may transfer the Software and all accompanying written materials on a permanent basis provided you retain no copies and the recipient agrees to the terms of this Agreement. You may not reverse engineer, decompile, or disassemble the Software. If the Software has been updated, any transfer must include all versions.
7. PATENT AND COPYRIGHT INDEMNIFICATION Mediafour shall defend any action, suit, or proceeding brought against you so far as it is based on a claim that the Software delivered hereunder infringes any United States patent or copyright, provided that you promptly notify Mediafour of the action and you give full authority, information and assistance for the defense of the action. Mediafour shall pay all damages and costs awarded therein against you, but shall not be responsible for any compromise made without its consent. Mediafour may, at its option and expense, replace or modify the Software so that infringement will not exist or refund to you the price thereof as depreciated or amortized by an equal amount over the lifetime of the Software as established by Mediafour. Mediafour's commitment shall not extend to any infringement or claim thereof which is based upon the combination of the Software delivered hereunder with software not supplied by Mediafour.
8. LIMITED WARRANTY Mediafour warrants that the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days from the date of purchase. Some states and countries do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you.
9. CUSTOMER REMEDIES Mediafour's and its suppliers' entire liability and your exclusive remedy shall be, at Mediafour's option, either (a) return of the price paid by you for the Software, or (b) replacement of the Software, which is returned to Mediafour with a copy of your proof of purchase. Outside the United States, these remedies are not available without proof of purchase from an authorized non-U.S. source.
10. NO OTHER WARRANTIES Mediafour and its suppliers disclaim all other warranties, either express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with regard to the Software and the accompanying materials.
11. U.S. GOVERNMENT RESTRICTED RIGHTS The Software and documentation are provided with RESTRICTED RIGHTS. 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 48 CFR 52.227-19, as applicable. The manufacturer is Mediafour Corporation, 2800 University Ave #101, West Des Moines, IA 50266-1258.
12. SUCCESSORS, ASSIGNMENT This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. You shall not assign or sublicense your rights or obligations under this Agreement except as provided herein.
13. COMPLETE AGREEMENT This Agreement constitutes the entire agreement between Mediafour and you relative to this License. Any change hereto shall be effective only if in writing and signed by both a duly authorized agent of Mediafour and you.
14. SEVERABILITY If any provision or portion thereof of this License is held to be invalid, void or unenforceable, the remaining provisions of this License shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.
15. EXPORT OR REEXPORT You shall not, directly or indirectly, export or transmit any Mediafour product covered by this Agreement to any country to which such exportation is restricted by applicable regulations or statutes of the United States or any agency thereof, without the prior written consent of the U.S. Department of Commerce, Washington D.C. 20230 and of any other required governmental agency.
16. GOVERNING LAW This Agreement is governed by the laws of the state of Iowa.