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License Agreement
ACTIVERSE, INC.
LICENSE AGREEMENT
"Product" shall mean the following items, only to the extent such items are actually obtained by you: object code of the Ding! computer software program, future version(s) thereof, all materials (e.g. including but not limited to documentation) related thereto, and any portion, copy and extract of such Product.
The accompanying proprietary Product is available from Activerse, Inc., a Texas corporation ("Activerse"), with its principal place of business located at 1301 W. 25th St., Suite 500, Austin, TX 78705.
ACTIVERSE IS DELIGHTED BY YOUR INTEREST IN USING THE PRODUCT.
BY CLICKING ON THE "ACCEPT" BUTTON (IN ORDER TO DOWNLOAD THE PRODUCT ONTO YOUR COMPUTER) OR BY INSTALLING THE PRODUCT ONTO YOUR COMPUTER (E.G. FROM A COMPACT DISC CONTAINING THE PRODUCT), YOU ARE AGREEING TO BE BOUND BY (AND BECOME A PARTY TO) ALL PROVISIONS OF THIS AGREEMENT ("AGREEMENT") AS SET FORTH IN DETAIL BELOW. IF YOU DO NOT AGREE TO BE BOUND BY (OR BECOME A PARTY TO) ALL PROVISIONS OF THIS AGREEMENT, THEN PERFORM THE FOLLOWING ACTIONS (AS APPLICABLE) WITHOUT INSTALLING THE PRODUCT ONTO YOUR COMPUTER AND WITHOUT RETAINING ANY COPY (INCLUDING BUT NOT LIMITED TO ANY COPY ON ELECTRONIC MEDIA) OF THE PRODUCT: CLICK ON THE "DO NOT ACCEPT" BUTTON.
1. License; Ownership.
- a. Subject to the other provisions of this Agreement, Activerse grants to you a personal, nontransferable, nonsublicensable, nonexclusive license, to use the Product only: (1) in accordance with the documentation supplied by Activerse, (2) on a single computer (or on a network if you have a licensed copy of the Product for each computer that can access the Product over such network), (3) until termination of this Agreement, and (4) provided that you agree to indemnify, hold harmless, and defend Activerse and its licensor(s) from and against any claims or lawsuits, including attorneys' fees, that arise or result from your use or distribution of the Product; subject however to the condition that (a) Activerse may (in its sole and exclusive direction) revoke such license, and/or revoke your (or anyone else's) ability to access and/or connect to any Ding! switchboard service, for any reason at anytime without notice, and (b) you shall not (and shall not cause or permit any nonparty to):
- (i) sell, offer to sell, assign, license, offer to license, distribute, offer to distribute, rent, lease, sublicense, grant a security interest in, mortgage, pledge or otherwise transfer any right in the Product, in whole or in part,
- (ii) reproduce, modify or translate the Product,
- (iii) create a derivative work of the Product,
- (iv) remove, alter, erase, deface or overprint any proprietary legend, notice or label on the Product, including but not limited to any copyright and trademark notice,
- (v) reverse assemble, reverse compile, reverse engineer, decrypt or extract the Product, or otherwise attempt to discover any Product source code or underlying Product information,
- (vi) use (directly or indirectly, in whole or in part) the Product for any commercial purpose (including for example but not limited to use by any non-profit or governmental organization) unless you pay an Activerse-specified fee to Activerse, or
- (vii) fail to comply with all of your obligations under this Agreement.
- b. The Product is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Product is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives you no rights to such content.
- c. This Agreement does not authorize you to use any name, trademark, service mark or logo of Activerse or of any nonparty.
2. Treatment of Information.
- a. You shall comply strictly with all import control laws and export control laws (including but not limited to the U.S. Export Administration Act) and restrictions and regulations of the U.S. Department of Commerce and other United States and foreign agency and authority, and not to download, import, export or reexport (and not to allow the download, import, export or reexport of) the Product in violation of any such laws, restrictions or regulations, or into (or to a national or resident of) Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria or any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders, or to Afghanistan, the People's Republic of China or any Group Q, S, W, Y or Z country specified in the then current Supplement No. l to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations). By agreeing to be bound by (and becoming a party to) this Agreement, you are agreeing to all terms and conditions of this Agreement and are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. You shall obtain, at your own expense, any necessary licenses and/or exemptions with respect to the download, import, export and reexport from the U.S. of the Product deliverable by Activerse.
- b. Unless specifically provided for in a separate written agreement between you and Activerse, you shall not disseminate, communicate, disclose or distribute information to Activerse that would subject Activerse to: (1) an obligation of confidentiality of any kind to you or any nonparty, (2) your intellectual property rights or intellectual property rights of any nonparty, or (3) restrictions of any kind on Activerse's use of the information and/or derivative works thereof.
- c. For the purposes of this Section 2, the term "you" shall include your employees and contractors.
3. Documentation, Support and Telephone Assistance.
This Agreement entitles you to documentation (hardcopy or softcopy) only to the extent of that which is initially provided with the product either through Internet download or on other electronic media, or available electronically through Activerse via the Activerse website or otherwise. You are entitled to support for this product according to the current Activerse support policy in effect at the time you request support. Should you be entitled to support in accordance with this Agreement and the current Activerse support policy, Activerse does not guarantee a resolution to your support issue irrespective of whether the support issue is related to the product or the product's required subsystems or a product defect or subsystem defect.
4. WARRANTY DISCLAIMER; WARNING.
THE PARTIES HERETO ACKNOWLEDGE THAT THE PRODUCT IS PROVIDED "AS IS" AND MAY NOT BE FUNCTIONAL ON ANY MACHINE AND IN ANY ENVIRONMENT. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE WHETHER THE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS ASSUMED BY AND BORNE BY YOU. THE LICENSE FEES FOR THE PRODUCT REFLECT THIS ALLOCATION OF RISK. WITH RESPECT TO YOU, ACTIVERSE AND ACTIVERSE'S LICENSOR(S) ARE UNDER NO OBLIGATION TO FIX ERRORS, IMPERFECTIONS OR INCOMPATIBILITIES FOUND IN THE PRODUCT. WITH RESPECT TO YOU, ACTIVERSE AND ACTIVERSE'S LICENSOR(S) EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE PRODUCT, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES THAT THE PRODUCT AND ITS OPERATION ARE FREE OF DEFECTS AND SECURE, AND ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF NONPARTIES' RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL WARRANTIES PROVIDED BY LAW (IF ANY) APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT.
5. LIMITATION OF REMEDIES AND DAMAGES.
ACTIVERSE AND ACTIVERSE'S LICENSOR(S) SHALL BE NEITHER RESPONSIBLE NOR LIABLE TO YOU OR ANY NONPARTY UNDER ANY CIRCUMSTANCES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT (AND TERMS AND CONDITIONS RELATED THERETO) UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY FOR ANY DAMAGES OF ANY TYPE, HOWEVER CAUSED, EVEN IF ACTIVERSE OR ACTIVERSE'S LICENSOR(S) WAS ADVISED OR INFORMED OF THE POSSIBILITY OF ANY CLAIM BY ANY NONPARTY OR OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO (A) ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES, (B) ANY DAMAGES SUFFERED BY YOU OR ANY NONPARTY ARISING OUT OF THE USE OF, INABILITY TO USE, OR ACTIVERSE'S DISTRIBUTION OF THE PRODUCT, (C) ANY DAMAGES FOR LOSS OR INACCURACY OF DATA, COSTS OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE, COMPUTER MALFUNCTION, AND ANY AND ALL OTHER COMMERCIAL DAMAGES AND LOSSES, AND (D) ANY DAMAGES FOR ANY MATTER BEYOND REASONABLE CONTROL OF ACTIVERSE OR ACTIVERSE'S LICENSOR(S). TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ACTIVERSE'S NEGLIGENCE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL ACTIVERSE'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT (IF ANY) PAID BY YOU TO ACTIVERSE HEREUNDER.
6. High Risk Activities. The Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the design, construction, operation or maintenance of any nuclear facility, control of aircraft, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Product could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, ACTIVERSE AND ITS LICENSOR(S) SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. You warrant that you will not use or redistribute the Product for such purposes.
7. Reservation of Right. Although Activerse intends to distribute a commercial release of the Product, Activerse reserves the right at any time not to distribute a commercial release of the Product or, if distributed, to alter prices, features, licensing provisions, or other characteristics of the commercial release. This Agreement does not grant you any right to any enhancement or update to the Product. Accordingly, use of the Product is at your sole risk.
8. Other Terms and Conditions. You shall adhere to the other terms and conditions specified in the attached Addendum.
9. Nonassignability. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by you, and any such attempted assignment or transfer shall be void and without effect.
10. U.S. Government End Users; Restricted Rights. The Product is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Product with only those rights set forth herein. The Product is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the United States 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 C.F.R. 52.227-19, as applicable. Manufacturer is Activerse, Inc., 1301 W. 25th St., Suite 500, Austin, TX 78705.
11. Equitable Relief. You acknowledge and agree that due to the unique nature of Activerse's Product, there can be no adequate remedy at law for any breach of your obligations hereunder, that any such breach may allow you or nonparties to unfairly compete with Activerse resulting in irreparable harm to Activerse and, therefore, that upon any such breach or threat thereof, Activerse shall be entitled to injunctions and other appropriate equitable relief, in addition to whatever remedies Activerse may have at law.
12. Termination. This Agreement may be terminated by Activerse for any reason or no reason upon thirty (30) days' written notice to you at your address, or immediately upon any breach by you of any of the provisions of this Agreement, and in any case shall terminate automatically 180 days after production release of the next version of the Product by Activerse. You may terminate this Agreement at any time by destroying all copies (including but not limited to any copy on electronic media) of the Product. Upon termination, you shall immediately destroy all copies (including but not limited to any copy on electronic media) of the Product in your possession and/or control, all licenses and rights granted to you under this Agreement shall immediately terminate, and the other provisions of this Agreement shall otherwise remain in full force and effect.
13. BASIS OF BARGAIN. EACH PARTY HERETO RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY HERETO UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY HERETO TO ENTER INTO THIS AGREEMENT.
14. Controlling Law, Attorneys' Fees and Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to the conflicts of laws provisions thereof and without regard to the United Nations Convention on the International Sales of Goods. In any action to enforce this Agreement, the prevailing party shall be entitled to costs and attorneys' fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited, eliminated or reformed to the minimum extent necessary to make this Agreement otherwise remain in full force and effect and enforceable.
15. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter hereof, and any and all written and oral agreements heretofore existing between the parties hereto concerning the subject matter hereof are expressly canceled. Any modifications of this Agreement must be in writing and signed by both parties hereto.
Addendum
OTHER TERMS AND CONDITIONS
You shall adhere to the following terms and conditions with respect to any "JavaTM Runtime Environment Version 1.1.x Binary Code" portion of the Product, in addition to the terms and conditions set forth elsewhere in this Agreement.
JavaTM Runtime Environment software and documentation are confidential copyrighted information of Sun Microsystems, Inc., 2550 Garcia Ave., Mountain View, CA 94043-1100, and title to all copies is retained by Sun and/or its licensors. You may not modify the Java Platform Interface ("JPI", identified as classes contained within the "java" package or any subpackages of the "java" package), by creating additional classes within the JPI or otherwise causing the addition to or modification of the classes in the JPI. In the event that you creates any Java-related API and distributes such API to others for applet or application development, you must promptly publish broadly, an accurate specification for such API for free use by all developers of Java-based software.
You shall adhere to the following terms and conditions with respect to any "Version 1.0.x: JavaTM Developers Kit" portion of the Product, in addition to the terms and conditions set forth elsewhere in this Agreement.
Version 1.0.x: JavaTM Developers Kit
Developed by Sun Microsystems, Inc.
2550 Garcia Avenue
Mountain View, California 94043
copyright (c) 1994, 1995, Sun Microsystems, Inc.
Copyright and License Information
JAVATM web development products are owned and licensed exclusively by Sun Microsystems, Inc. Copyright (c) 1992-96 Sun Microsystems, Inc. All rights reserved.
Java and all Java-based names and logos, including the Coffee Cup and Duke, are trademarks of Sun Microsystems, Inc. and refer to Sun's Java Technologies. Products bearing authorized "JAVA-Compatible" Logo are based upon Sun's JAVA and technology, and are compatible with the API's for such technology.
Sun grants to you ("Licensee") a non-exclusive, nontransferable license to use the Java binary code version (hereafter, "Binary Software") without fee. Licensee may distribute the Binary Software to third parties provided that the copyright notice and this statement appear on all copies. Licensee agrees that the copyright notice and this statement will appear on all copies of the software, packaging, and documentation or portions thereof.
In the event Licensee creates additional classes or otherwise extends the Applet Application Programming Interface (AAPI), licensee will publish the specifications for such extensions to the AAPI for use by third party developers of Java-based software, in connection with licensee's commercial distribution of the Binary Software.
RESTRICTED RIGHTS: Use, duplication or disclosure by the government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause as DFARS 252.227-7013 and FAR 52.227-19.
SUN MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OF THE BINARY SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SUN SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY LICENSEE AS A RESULT OF USING, MODIFYING OR DISTRIBUTING THE BINARY SOFTWARE OR ITS DERIVATIVES.
By downloading, using or copying this Binary Software, Licensee agrees to abide by the intellectual property laws and all other applicable laws of the U.S., and the terms of this License. Ownership of the software shall remain solely in Sun Microsystems, Inc.
Sun shall have the right to terminate this license immediately by written notice upon Licensee's breach of, or non-compliance with, any of its terms. Licensee shall be liable for any infringement or damages resulting from Licensee's failure to abide by the terms of this License.
The JDK 1.0.x binary release is based in part on the work of the Independent JPEG Group.
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