License Agreement
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 (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. 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 OPTICAL DISC 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 PROVIDER'S 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 OPTICAL DISC
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"). This license does not constitute a sale and
does not authorize a sale of the Software or anything created
thereby. All intellectual property (including copyright,
trademark and patent) in the Software is owned or controlled by
Licensor and are protected by United States laws and international
treaty provisions. Licensor retains all rights not expressly
granted to you. Unless otherwise stipulated in the license
agreement accepted by you in connection with an electronic software
download ("ESD") of the Software (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 as otherwise provided herein,
and 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. The restrictions contained herein apply equally to
hybrid CD-ROMS which may contain multiple versions of the Software
for use on different operating systems. Regardless of the
type of media you receive, you may use only the portion appropriate
for your single-user computer/workstation. In the event you
fail to comply with any of the terms or conditions of this license,
your rights to use the Software will end; you shall stop using the
Software, remove the Software from your computer, and permanently
erase all copies of the Software. You may not export or
re-export the Software or any underlying information or technology
except in full compliance with all United States and other
applicable laws and regulations.
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. Scope of Rights. You may:
- Install/download the Software on your computer;
- Retain the Software Optical Disc, if any, for backup
purposes;
- If not copy protected, make one copy of the Software on a
second Optical Disc for the purpose of backup in the event the
Software Optical Disc is damaged or destroyed (retaining any
copyright and other proprietary notices that appear on the original
Optical Disc); and
- 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.
- 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:
- 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;
- Reverse assemble, reverse compile, or otherwise translate the
Software;
- Transfer, lease, assign, or sublicense your rights except for a
transfer of the Software in its entirety.
- 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.
- Remove any proprietary notices or labels in the Software.
- Rent or lease the Software, but libraries and schools may lend
the Software to third parties; provided the Software is in CD-ROM
format and each end user is given a copy of this License Agreement
which will govern the use of such Software.
- 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 computer's 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. If you purchased this product direct from Encore
via phone, website, or email (www.broderbund.com, www.encoreusa.com, www.encore.com, www.hoylegaming.com), or at
a retail store, and excluding any Internet website
link(s), Encore warrants, for the benefit of the initial installer
alone, for a period of ninety (90) days from the date of
commencement of this License Agreement (referred to as "Warranty
Period") that the Software and the Software Optical Disc in which
the Software is contained, if any, is substantially free from
defects in material and workmanship. If during the Warranty
Period, a defect in the Software appears, you may return the
physical Optical Disc 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 OPTICAL DISC, 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. This limited warranty is void if
failure of the Software has resulted from accident, abuse, neglect
or misapplication. Any replacement Software will be warranted
for the remainder of the original warranty period or thirty (30)
days, whichever is longer. Except as set forth above, the
Software is sold "as-is", without any express or implied warranties
of any kind.
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 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. LICENSOR 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,
ITS LICENSORS, ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL
CREATE ANY WARRANTY.
7. Remedies. 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, if a physical Optical Disc containing the Software was
purchased, such defective Optical Disc is returned to Encore (at
Encore Software, Inc., Attn: Customer Service, 999 N. Sepulveda
Blvd. Suite 700, El Segundo, CA 90245.), and regardless of the
format of the originally purchased Software, proof of the date of
purchase is submitted to Encore (for physical Optical Discs) or the
ESD provider (for electronic downloads) within ninety (90) days
from the date of purchase.
8. Limitation of Liability. THE CUMULATIVE
LIABILITY OF LICENSOR TO YOU FOR ALL CLAIMS RELATING TO THE
SOFTWARE AND THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING
IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY,
SHALL NOT EXCEED THE LICENSE FEE PAID TO LICENSOR FOR USE OF THE
SOFTWARE.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE
OF OR INABILITY TO USE THE SOFTWARE, USER DOCUMENTATION OR RELATED
TECHNICAL SUPPORT, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS
RELATING TO LOSS OF PROFITS, BUSINESS, GOODWILL, DATA, TIME OR
COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; OR FOR ANY CLAIMS OR DEMANDS BROUGHT AGAINST YOU, EVEN IF
LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR
DEMANDS. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THAT THE
ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Miscellaneous. Encore may cancel, change, modify,
discontinue, terminate or charge a fee at any time for any reason
for the online services advertised as part of this product.
No change or modification of the License Agreement will be valid
unless it is in writing and is signed by Encore.
10. Conditions for Use of Properties Within the
Software. If you do not accept these conditions and you are
the initial installer of the Software, you may promptly return the
Software (including all discs and printed materials) with proof of
purchase to the place it was purchased for a full refund of the
amount paid or store credit (as applicable). Encore hereby
reserves the right to change these conditions of use without notice
in its sole discretion or to grant any permissions consistent
therewith in its sole discretion. All content contained in
the Software, including but not limited to characters, designs,
text, photos, clip art, images, animations, fonts, graphics,
templates, sounds, videos, and projects contained in the Software
(the "Properties") are either owned or used under license by Encore
and are protected under trademark, copyright, and other applicable
laws. Any and all unauthorized use of the Properties is
strictly prohibited. You may not sell any Property or any
item containing or carrying a copy of the Property. Subject
to the restrictions below, you may make copies of the Properties
for use in home entertainment and projects, for educational
purposes, in multimedia presentations, and other similar
uses. For example, you may use the Properties to create
posters, stationery, marketing flyers, greeting cards, signs,
invitations, calendars, reports, catalogs, brochures and
newsletters. All rights in derivative works created by the
use of a Property shall vest exclusively in Licensor. Each
authorized use of a Property must be accompanied by the following
notice: "©Encore Software, Inc., and its licensors. All
rights reserved." You are NOT permitted to:
- Use any images included in this product containing trademarks
or logos of any third party in any print or electronic media of an
editorial, commercial, promotional or corporate nature;
- Resell, sublicense or distribute collections of the Properties
including, for example, clip art collections, photo collections, or
stock collections;
- Sell any item on which any Property is copied or otherwise
printed;
- Use any of the Properties as a logo, trademark or similar
designation of your business;
- Use any individual's name, likeness and/or image in any manner
which suggests the endorsement or association of any product or
service. For example, you may use a photo of an animal in an
advertisement, but you may not use the image of a person.
- Use any Property to create immoral, obscene or scandalous
works.
- Use any Property in electronic format, including online use and
multimedia applications, unless all of the following conditions are
met:
- The Properties are incorporated for viewing purposes only;
- The Properties do not comprise a significant portion of the
content of the proposed use;
- A notice is included specifying that the Properties may not be
saved or downloaded and are only to be used for viewing purposes;
and,
- The Properties are embedded at no higher than a base resolution
of 512x768.
9. Proprietary Protection. Licensor shall retain sole
and exclusive ownership of all right, title, and interest in and to
the Software and all modifications and enhancements. This License
Agreement does not provide you with title or ownership of the
Software, but only a right of limited use.
10. Costs of Litigation. If any action is brought by
either party to this License Agreement against the other party
regarding the subject matter hereof, the prevailing party shall be
entitled to recover, in addition to any other relief granted,
reasonable attorney fees and expenses of litigation.
11. Severability. In the event that any terms of
this License Agreement are or become or are declared to be invalid
or void by any court of competent jurisdiction, such determination
shall have no effect on the remaining terms of this Agreement,
which shall remain in full force and effect.
12. Governing Law. This License Agreement shall be
governed by and construed in accordance with the laws of the State
of California, U.S.A. All actions or proceedings seeking the
interpretation and/or enforcement of this Agreement shall be
brought only in the State or Federal Courts located in Los Angeles
County in the State of California. Licensor and Consumer
hereby submit themselves to the jurisdiction of such courts.
13. Dispute Resolution. Any dispute, claim or controversy
concerning the parties' duties under this License Agreement shall
be directed to binding arbitration administered by, and pursuant to
the rules of, the American Arbitration Association ("AAA").
Such arbitration shall take place in Los Angeles County in the
State of California. Each party shall bear the expense of their own
attorney's fees and its prosecution of its claims/defenses.
The parties shall share equally all other costs and expenses
associated with such arbitration. Judgment upon any AAA award may
be entered in any court having jurisdiction as outlined in section
11 of this License Agreement.
14. No Waiver. The failure of either party to enforce any
rights granted hereunder or to take action against the other party
in the event of any breach hereunder shall not be deemed a waiver
by that party as to subsequent enforcement of rights or subsequent
action in the event of future
breaches.
15. No Adequate Legal Remedy. You acknowledge that, in the
event of your breach of any of the foregoing provisions, Licensor
will not have an adequate remedy in money or damages. Licensor
shall therefore be entitled to obtain an injunction against such
breach from any court of competent jurisdiction immediately upon
request. Licensor's right to obtain injunctive relief shall not
limit its right to seek further remedies.
16. U.S. Government Restrictions. This Software is
provided with restricted rights and limited rights. Use,
duplication, or disclosure by the Government is subject to
restrictions 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.
17. Conflict. In the event of any conflict between the terms
of this License Agreement and the terms of the ESD Agreement, the
terms of this License Agreement shall prevail as between you and
Licensor, and the terms of the ESD Agreement shall prevail as
between you and the ESD provider, except as otherwise set forth
herein.
© 2013 Encore Software, Inc. All
rights reserved. Encore and the Encore logo are trademarks or
registered trademarks of Encore Software, Inc. in the U.S. and
other countries.
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