License Agreement
PLEASE READ THIS AGREEMENT CAREFULLY END USER SOFTWARE LICENSE
AGREEMENT
THIS LICENSE AGREEMENT RELATES TO ALL COMPUTER SOFTWARE, WHETHER
DOWNLOADED ELECTRONICALLY (ELECTRONIC SOFTWARE DELIVERY SHALL BE
REFERRED TO HEREIN AS "ESD") OR CONTAINED WITHIN A PHYSICAL
"OPTICAL DISC", WHICH SHALL INCLUDE, WITHOUT LIMITATION, ANY
CD-ROM, DVD-ROM, HD-ROM, BLUE RAY DISC, USB DRIVE, OR OTHER TYPE OF
OPTICAL DISC OR OTHER MEDIA USED OR CREATED IN THE FUTURE, AND THE
ACCOMPANYING USER DOCUMENTATION CONTAINED EITHER WITHIN THE
DOWNLOADED CONTENT OR ON THE PHYSICAL OPTICAL DISC (THE
"SOFTWARE"). THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD) TO
YOU.ENCORE IS WILLING TO GRANT YOU THE LICENSE TO USE THE SOFTWARE
ACCORDING ONLY ON THE CONDITION THAT YOU ACCEPT ALL TERMS IN THIS
AGREEMENT.
BY CLICKING ON THE "YES" OR "ACCEPT" BUTTON BELOW OR OTHERWISE
COMPLETING THE INSTALLATION PROCESS, YOU ACKNOWLEDGE THAT YOU ARE
OF THE AGE OF MAJORITY AND HAVE READ THIS AGREEMENT, UNDERSTAND IT,
AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF
THE TERMS BELOW, YOU SHOULD CLICK ON THE "NO" OR "DO NOT ACCEPT"
BUTTON BELOW OR OTHERWISE DISCONTINUE THE INSTALLATION
PROCESS. IN SUCH CASE, ANY AMOUNTS ALREADY PAID BY YOU
MAY BE REFUNDED BY THE RETAILER FROM WHICH YOU PURCHASED THE
SOFTWARE, SUBJECT TO ITS REFUND POLICY, OR IF YOU PURCHASED THE
LICENSE TO THE SOFTWARE DIRECTLY FROM ENCORE, 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 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. PLEASE SEND THE MANDATORY ITEMS TO THE
FOLLOWING ADDRESS: ENCORE SOFTWARE, INC., 230 2ND ST. SE, SUITE
302, CEDAR RAPIDS, IA 52401.
1. COPYRIGHT. The Software
is protected by copyright laws
and international copyright treaties, as well as other
intellectual property laws and treaties. All title and copyrights
in and to the Software (including but not limited to any images,
photographs, animations, video, music, text and "applets"
incorporated into the Software) and any printed materials
accompanying the Software are owned by Encore or its Encores.
2. GRANT OF LICENSE. The Software is licensed and not sold
to you and its use is subject to this Agreement. Subject to the
terms and conditions of this Agreement and in consideration of Your
agreement to be bound by this Agreement, Encore grants You a
limited, personal, non-exclusive license to reproduce as necessary
to install and use the Software in the manner described in the user
documentation. Encore reserves all rights not expressly
granted to You in this Agreement. You agree to pay any sales, use,
value added, or other tax or charge imposed or assessed by any
governmental entity.
3. PERMITTED USES. You may install and use the Software
only on a single computer. You may make and maintain one copy of
the Software (including user documentation) for backup and archival
purposes, provided that the original and copy of the Software are
kept in your possession and you reproduce all copyright and other
proprietary notices that are on the original copy of the Software.
You may permanently transfer all your rights under this Agreement,
provided you give Encore prior written notice, You retain no
copies, You transfer all of the Software (including all component
parts, the media and printed materials and any upgrades) and the
recipient reads and accepts this Agreement. Any assignment in
derogation of the foregoing shall be null and void.
4. DIGITAL RIGHTS MANAGEMENT AND PRIVACY.
a. This product contains hyperlinks to third party 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 acknowledge and agree that
Encore shall not be responsible or liable, either directly or
indirectly, for any damage or loss caused or alleged to be caused
by or in connection with use of or reliance upon any content, goods
or services available on or through any such Linked Site. YOU
ASSUME RESPONSIBILITY FOR ALL USE OF OR ACCESS TO LINKED SITES, AND
ACCESS THE SAME AT YOUR OWN RISK. ENCORE EXPRESSLY DISCLAIMS
ANY RESPONSIBILITY FOR LINKED SITES. LINKED SITES ARE
MADE AVAILABLE TO YOU WITHOUT WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NO ADVICE OR INFORMATION GIVEN BY ENCORE, ITS AFFILIATES
OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY
WARRANTY.
b. If the Software is enabled to provide online features, You
may voluntarily submit information to Encore such as Your user
name, password, high scores, medals, chat text, or content that You
create or access through the Software ("Online Services").You
hereby consent that such information is subject to Encore's Privacy
Policy (http://www.broderbund.com/c-18-privacy-policy.aspx) and
Terms & Conditions
(http://www.broderbund.com/c-27-terms-conditions.aspx).
c. The Software may include digital rights management
technologies and/or a registration application (collectively,
"Wrapper") provided by the distributor of your copy of the
Software. This Wrapper may be used to collect personal
information from you in order to activate a game in order to
prevent unauthorized use or to register your product. Encore has no
control over or liability for any third party digital rights
management technology and you should contact the retailer from whom
you purchased your copy of the Software for their policies.
Where Encore's digital rights management technologies are used,
Encore's collection, use, disclosure, and protection of personal
information is described in Encore's Privacy Policy.
You expressly consent to processing of your personal information,
in accordance with the Privacy Policy, in the country in which You
reside as well as in other jurisdictions, such as the United
States, which may have less stringent laws regarding the processing
of personal information. You expressly consent to Encore's
use of cookies, any data you submit during registration or
otherwise, clear GIFs, and digital rights management when you use
Encore's services or access the game, as described in the Privacy
Policy. You also consent to Encore's use of a game updater
technology that will automatically search Your computer for
previously downloaded Encore games (including the version and time
played) so Encore may offer updates and promotional upgrades to
you. For optional updates and promotional upgrades you will be
asked if you want the update or upgrade prior to transmission of
game information to Encore; for critical updates a notification
will appear in the game window. The digital rights management
may also disallow or disable access to the Software where Encore
has reason to believe it is being used in violation of these terms
or where the term of this Agreement has ended.
5. TECHNICAL SUPPORT. Technical support for the Software is
available at http://www.support.encore.com.
6. RESTRICTIONS. You may not delete or obscure any
copyright, trademark or other proprietary notice on the Software or
accompanying printed materials. Except as
expressly permitted by applicable
law, You may not decompile,
modify, reverse engineer, disassemble or otherwise reproduce
the Software. You may not copy, rent, lease, sell, sublicense,
distribute, publicly display the Software, create derivative works
based on the Software or otherwise commercially exploit the
Software. You may not sell, resell, or distribute unlock keys
whether purchased from an authorized distributor or generated
independently. You may not evade the digital rights management
technology, copyright protection, access restrictions or other
authorization mechanisms for the Software. You may not
electronically transmit the Software from one computer, console or
other platform to another or over a network. You may not circumvent
any encrypted data protections or gain access to data that is not
licensed. You may not use any backup or archival copy of the
Software for any purpose other than to replace the original copy in
the event it's destroyed or becomes defective. If this Software
allows you to purchase licenses to upgrades and features (new
levels, characters, in-game items) at the Encore online store
("Game Items"), all such Game Items, even if licensed at a later
date, are part of this Software and subject to this end user
license agreement. Accordingly, you may not sell or
transfer the Game Items and all such transfer or sale is null and
void. Any unauthorized reproduction or modification,
distribution, or performance of the Software including any Game
Items is strictly prohibited.
7. FEES AND PAYMENT. The license fees paid by You
are paid in consideration of the licenses granted under this
Agreement and any license agreement accepted by You in connection
with an electronic download of the Software.
8. TERMINATION. This Agreement is effective from the time
You open the Software until it is terminated. You may terminate
this Agreement at any time by destroying the Software or by
following those steps set forth in the box at the beginning of the
Agreement in the event the terms of this Agreement are not accepted
by You. This Agreement will terminate automatically without notice
from Encore if You fail to comply with any provision of this
Agreement. Upon notice of termination, You agree to promptly
destroy all of Your copies of the Software. There shall be no
refund if this Agreement is terminated by Encore for Your failure
to comply with the terms of this Agreement. All provisions of
this Agreement as to warranties, limitation of liability, remedies
and damages will survive termination. The parties agree to waive
any provisions, procedures and the operation of any legislation to
the extent that a court order or approval is required to terminate
this Agreement.
9. LIMITED WARRANTY . Excluding the Linked Sites, 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 Optical Disc in which
the Software is contained is free from defects in material and
workmanship. This limited warranty is void if failure of the
Software has resulted from accident, abuse, neglect or
misapplication. If during the Warranty
Period, a defect in the Software appears, You may
return the physical Optical Disc containing the Software to Encore
for either replacement, or, if so elected by Encore, refund of
amounts paid by You under this License Agreement. Any
replacement Software will be warranted for the remainder of the
original warranty period or thirty (30) days, whichever is longer.
Except for the warranties set forth above, the Software, including
without limitation the Optical Disc in which the Software is
contained, if any, is provided to You "As Is" and Encore and its
suppliers expressly disclaim all warranties and conditions,
express, implied or statutory, including without limitation the
implied warranties or conditions of merchantability, fitness for a
particular purpose, and non-infringement. No oral or written
information or advice given by Encore, its employees, distributors,
dealers, or agents shall increase the scope of the above warranties
or create any new warranties.
10. REMEDIES; LIMITATION OF REMEDIES AND LIABILITIES.
a. Your exclusive remedy shall be, at Encore's sole option, (i)
the refund of the amount You paid for the Software; or (ii) repair
or replacement of the Software, provided that such
defective Optical Disc is returned
to Encore at Encore Software,
Inc., Attn: Customer Service, 230 2nd ST. SE, Suite 302,
Cedar Rapids, IA 52401, and proof of the date of
purchase is submitted to Encore
within ninety (90) days from
the date of purchase. You agree that the
foregoing constitutes Your sole and exclusive remedy for breach by
Encore of any warranties made under this Agreement.
b. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF
ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL ENCORE OR ITS
SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST
PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (WHETHER BASED
IN CONTRACT, TORT, OR STATUTE) ARISING OUT OF THE USE OR INABILITY
TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF ENCORE
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS OR DAMAGES AND
WHETHER OR NOT SUCH
LOSS OR DAMAGES ARE FORESEEABLE.
c. IN NO EVENT SHALL THE LIABILITY OF ENCORE EXCEED THE AMOUNT
RECEIVED BY ENCORE FROM YOU UNDER THIS AGREEMENT OR ONE U.S. DOLLAR
($1.00) IF ENCORE IS NOT IN RECEIPT OF ANY MONIES FROM YOU.
d. In jurisdictions that do not allow the exclusion or
limitation of liability for consequential, special or incidental
damages, Encore's liability under this Agreement shall be limited
to the maximum extent permitted by applicable law. Nothing in
this Agreement limits Encore's liability for fraudulent
misrepresentation or for death or physical injury directly caused
by Encore's negligence.
e. Encore shall have the right to obtain injunctive or
administrative relief in any court of competent jurisdiction or
through any administrative authority having jurisdiction over a
party in the event of a breach of the terms of this Agreement.
11. EXPORT CONTROL. The Software and related
technology are subject to U.S. export control laws and may be
subject to export or import regulations in other countries. You
agree to strictly comply with all such laws and regulations and
acknowledge that you have the responsibility to obtain such
licenses to export, re-export or import as may be required.
12. GENERAL. This Agreement will be governed by the laws
of the State of California in the United States of America, without
regard to or application of conflicts of law rules or principles.
The Federal and State Courts located in Los Angeles County shall
have sole jurisdiction over any disputes arising hereunder and the
parties hereby submit to the personal jurisdiction of such courts.
If any provision of this Agreement is held to be unenforceable,
that provision will be removed and the remaining provisions will
remain in full force. In the event any proceeding or lawsuit is
brought by Encore or You in connection with this Agreement, the
prevailing party in such proceeding or lawsuit shall be
entitled to receive its costs,
expert witness fees and reasonable
attorney's fees, including costs and fees on appeal. The
failure of either party to require performance by the other party
of any provision hereof shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by
either party of a breach of any provision hereof, unless the waiver
is in writing by You or an authorized agent of Encore, be taken or
held to be a waiver of the provision itself. This Agreement is the
complete and exclusive statement of the agreement between Encore
and You which supersedes any proposal or prior agreement, oral or
written, and any other communications between the parties in
relation to the subject matter of this Agreement. This
Agreement shall not be modified except by a subsequently dated
written amendment or exhibit signed by both parties by their duly
authorized representatives. You represent that You have
entered into this Agreement of Your own free will and that You are
above the age of minority at the time You agree to this Agreement
or that Your legal guardian consents to these terms on Your
behalf.
THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND
INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS
SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
© 2015 Encore Software, Inc. All rights reserved.
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