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- LIMITED USE SOFTWARE LICENSE AGREEMENT
-
- This Limited Use Software License Agreement (the "Agreement") is a legal
- agreement between you, the end-user and Reflexive Entertainment, Inc. ("Reflexive").
- By installing this game program entitled SWARM, by loading or running the game
- program, or by placing or copying the game program onto your computer hard drive,
- computer RAM or other storage, you are agreeing to be bound by the terms of this
- Agreement.
-
- 1. Grant of License for Software. Subject to the terms and conditions of this
- Agreement, Reflexive grants to you the non-exclusive and limited right to use
- the software game program entitled SWARM in executable or object code form only
- (the "Software") for recreational purposes only. The term "Software" includes
- all elements of the Software such as data files, images appearing in the Software
- and screen displays. You are not receiving any ownership or proprietary right,
- title or interest in or to the Software or the copyright, trademarks, or other
- rights related thereto. For purposes of this section, "use" means loading the
- Software into RAM and/or onto computer hard drive, as well as installation of
- the Software on a hard disk or other storage device.
-
- You agree that the Software will not be shipped, transferred or exported into
- any country in violation of the U.S. Export Administration Act (or any other
- law governing such matters) by you or any one at your direction and that you will
- not utilize and will not authorize anyone to utilize, in any other manner, the
- Software in violation of any applicable law. The Software may not be exported
- or reexported into (or to a national or resident of) any country to which the U.S.
- has embargoed goods or to anyone or into any country who/which are prohibited, by
- applicable law, from receiving such property.
-
- 2. Prohibitions with Regard to Software. You, either directly or in- directly, shall
- not do any of the following acts:
-
- a. rent the Software;
-
- b. sell the Software;
-
- c. lease or lend the Software;
-
- d. offer the Software on a pay-per-play basis;
-
- e. distribute the Software by any means, including, but not limited to, Internet
- or other electronic distribution, direct mail, retail, mail order, or other means;
-
- f. in any other manner and through any medium whatsoever commercially exploit the
- Software or use the Software for any commercial purpose;
-
- g. disassemble, reverse engineer, decompile, modify or alter the Software;
-
- h. translate the Software;
-
- i. reproduce or copy the Software (except as permitted by section 3. Herein below);
-
- j. publicly display the Software; or
-
- k. prepare or develop derivative works based upon the Software.
-
- 3. Permitted Copying. You may make only the following copies of the Software:
- (i) you may copy the Software from the CD ROM (if applicable) which you purchase
- onto your computer hard drive; (ii) you may copy the Software from your computer
- hard drive into your computer RAM; and (iii) you may make one (1) "back up" or
- archival copy of the Software on one (1) hard disk.
-
- 4. Intellectual Property Rights. The Software, including the Reflexive Images,
- and all printed material accompanying the Software (the "Printed Materials")
- and all copyrights, trademarks and all other conceivable intellectual property
- rights related to the Software, the Printed Materials and the Reflexive
- Images are owned by Reflexive and are protected by United States copyright
- laws, international treaty provisions and all applicable law, such as the
- Lanham Act. You must treat the Software, the Printed Materials and the
- Reflexive Images like any other copyrighted material, as required by 17 U.S.C.,
- 101 et seq. and other applicable law. You agree to use your best efforts to
- see that any user of the Software licensed hereunder, the Printed
- Materials complies with this Agreement. You agree that you are receiving
- a copy of the Software, including the Reflexive Images, and the Printed
- Material by license only and not by sale and that the "first sale" doctrine
- of 17 U.S.C. 109 does not apply to your receipt or use of the Software
- or the Printed Materials. This section 4. shall survive the cancellation
- or termination of this Agreement.
-
- 5. Limited Reflexive Warranty. Reflexive warrants to the original purchaser of
- the Software recorded on CD ROM, that the CD ROM on which the Software is recorded
- will be free from defects in material and workmanship for 90 days from the date
- of purchase. If the CD ROM is found to be defective within 90 days of original
- purchase, Reflexive agrees to replace, free of charge, any product discovered
- to be defective within such period upon its receipt of the product, postage
- paid, with proof of the date of purchase, as long as the Software is still
- being manufactured by Reflexive. In the event that the Software is no longer
- available, Reflexive retains the right to substitute a similar program of
- equal or greater value. This warranty is limited to the recording medium
- containing the Software as originally provided by Reflexive and is not
- applicable to normal wear and tear. This warranty shall not be applicable
- and shall be void if the defect has arisen through abuse, mistreatment,
- or neglect. EXCEPT AS SET FORTH ABOVE, THIS WARRANTY IS IN LIEU OF ALL OTHER
- WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY
- OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
- REFLEXIVE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE
- UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE WILL MEET YOUR SPECIFIC
- REQUIREMENTS. ADDITIONAL STATEMENTS SUCH AS PRESENTATIONS, WHETHER ORAL OR
- WRITTEN, DO NOT CONSTITUTE WARRANTIES BY REFLEXIVE AND SHOULD NOT BE RELIED
- UPON. This section 5. shall survive the cancellation or termination of
- this Agreement.
-
- If returning the Software for warranty replacement, the original product disks must
- be sent only in a protective packaging and include: (1) a photocopy of your dated
- sales receipt; (2) your name and return address typed or clearly printed; (3) a brief
- note describing the defect, the problem(s) you are encountered and the system on
- which you are running the Software; (4) if you are returning the Software after the
- 90-day warranty period, but within one year after the date of purchase, please
- include check or money order for $10 U.S. currency per CD or floppy disk replacement.
- Note: Certified mail recommended.
-
- In the U.S. send to
- Warranty Replacements
- Reflexive, Inc.
- 14252 Culver Dr. Ste. A303
- Irvine, California 92604
-
- 6. Venue and Liability Limitation. This Agreement shall be construed in accordance
- with and governed by the laws of the State of California and applicable United
- States federal law. Copyright and other proprietary matters will be governed
- by United States laws and international treaties. Except as set forth below,
- exclusive venue for all litigation with regard to this Agreement shall be in
- Orange County, California and you agree to submit to the jurisdiction of the
- courts in Irvine, California for any such litigation.
-
- IN ANY CASE, NEITHER REFLEXIVE, NOR ANY OF REFLEXIVE'S RESPECTIVE OFFICERS,
- EMPLOYEES, DIRECTORS, AGENTS, LICENSEES (EXCLUDING YOU), SUBLICENSEES
- (EXCLUDING YOU), SUCCESSORS OR ASSIGNS SHALL BE LIABLE FOR LOSS OF DATA, LOSS
- OF PROFITS, LOST SAVINGS, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT,
- PUNITIVE OR OTHER SIMILAR DAMAGES ARISING FROM BREACH OF WARRANTY, BREACH OF
- CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHER LEGAL THEORY EVEN
- IF REFLEXIVE OR THEIR RESPECTIVE AGENT(S) HAVE BEEN ADVISED OF THE POSSIBILITY
- OF SUCH DAMAGES OR EVEN IF SUCH DAMAGES ARE FORESEEABLE, OR LIABLE FOR ANY
- CLAIM BY ANY OTHER PARTY. Some jurisdictions do not allow the exclusion or
- limitation of incidental or consequential damages, so the above limitation
- or exclusion may not apply to you. This section 6. shall survive the
- cancellation or termination of this Agreement.
-
- 7. U.S. Government Restricted Rights. To the extent applicable, the United
- States Government shall only have those rights to use the Software, the
- Printed Materials and Reflexive Images appearing in the Levels as expressly
- stated and expressly limited and restricted in this Agreement, as provided
- in 48. C.F.R. 227.7202-1 through 227.7204.
-
- 8. General Provisions. Neither this Agreement nor any part or portion hereof
- shall be assigned or sublicensed by you. Reflexive may assign its respective
- rights under this Agreement in the assigning party's sole discretion.
- Should any provision of this Agreement be held to be void, invalid,
- unenforceable or illegal by a court, the validity and enforceability of the
- other provisions shall not be affected thereby. If any provision is determined
- to be unenforceable, you agree to a modification of such provision to provide
- for enforcement of the provision's intent, to the extent permitted by
- applicable law. Failure of Reflexive to enforce any provision of this
- Agreement shall not constitute or be construed as a waiver of such
- provision or of the right to enforce such provision. If you fail to comply
- with or breach any term or condition of this Agreement, YOUR LICENSES AND
- THIS AGREEMENT ARE AUTOMATICALLY TERMINATED, WITHOUT NOTICE. In the event
- this Agreement is terminated, you shall have no right to use the Software or
- the Printed Materials, in any manner, and you shall immediately destroy all
- copies of the Software and the Printed Materials in your possession, custody
- or control.
-
- YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS
- AGREEMENT, AND UNDERSTAND THAT BY LOADING OR RUNNING THE SOFTWARE, OR BY PLACING
- OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE OR RAM, YOU AGREE TO BE
- BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT,
- EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN REFLEXIVE AND YOU, IF ANY,
- THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND
- LIABILITIES OF THE PARTIES HERETO. THIS AGREEMENT SUPERSEDES ALL PRIOR ORAL
- AGREEMENTS, PROPOSALS OR UNDERSTANDINGS, AND ANY OTHER COMMUNICATIONS BETWEEN
- REFLEXIVE AND YOU RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
-
- March 2, 1998
-