YOU ARE NOT AUTHORIZED TO INSTALL OR USE THE SOFTWARE UNLESS YOU HAVE SIGNED AND RETURNED THE "MICROSOFT LICENSE AND NON-DISCLOSURE AGREEMENT FOR THE PRE-RELEASE VERSION OF MICROSOFT WINDOWS MEDIA ENCODER SOFTWARE DEVELOPMENT KIT v9" THAT FOLLOWS:
This is a legal agreement ("Agreement") between you (either an individual or entity), the end user, and Microsoft Corporation ("Microsoft"). Upon receipt by Microsoft of this Agreement, signed and completed by the individual or organization indicated below ("Recipient"), Microsoft may elect, at its sole discretion, to provide Recipient with a pre-release copy of the Microsoft technology as defined below which may include software, related documentation, and other related information (collectively, the "Software"). Microsoft may, in its sole discretion, also provide further pre-releases of the Software to Recipient hereunder, in which case such further pre-releases shall also be covered hereunder as "Software."
MICROSOFT LICENSE AND NON-DISCLOSURE AGREEMENT
FOR THE PRE-RELEASE VERSION OF
MICROSOFT WINDOWS MEDIA ENCODER SOFTWARE DEVELOPMENT KIT v9
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.
1. GRANT OF LICENSE. This Agreement grants Recipient the following rights provided that Recipient complies with all terms and conditions of this Agreement:
(a) Microsoft grants to Recipient a limited, non-exclusive, nontransferable, royalty-free license to install, reproduce, and use up to ten (10) copies of the Software on computers residing on RecipientÆs premises, solely for purposes of developing and testing prerelease versions of computer software applications that run in conjunction with the Software, and to evaluate the Software for the purpose of providing feedback thereon to Microsoft. Recipient may not commercially release applications based on this Software.
(b) All other rights are reserved to Microsoft.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS:
(a) Recipient shall not rent, lease, sell, sublicense, assign, or otherwise transfer any portion of the Software. Recipient may not reverse engineer, decompile or disassemble any portion of the Software, except and only to the extent that this limitation is expressly prohibited by applicable law notwithstanding this limitation.
(b) Recipient agrees to provide to Microsoft reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports and test results, with respect to Software testing (collectively, "Feedback"). Recipient grants Microsoft, under all of RecipientÆs intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i)áto make, use, copy, modify, and create derivative works of, the Feedback as part of any Microsoft product, technology, service, specification or other documentation (individually and collectively, "Microsoft Works"); (ii)áto publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Microsoft Work; (iii)ásolely with respect to RecipientÆs copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by Recipient that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the Feedback or portion thereof incorporated into a Microsoft product, technology or service. Further, Recipient warrants that RecipientÆs Feedback is not subject to any license terms that would purport to require Microsoft to comply with any additional obligations with respect to any Microsoft Works that incorporate any Feedback. Due to the nature of the development work, Microsoft provides no assurance that any specific errors or discrepancies in the Software will be corrected.
(c) Recipient warrants that as of the time Recipient provides Feedback, Recipient is not aware of, and has not been put on notice of, any asserted intellectual property claims or other intellectual property rights related to such Feedback or the use thereof. If Recipient is an authorized representative of Company, "Recipient" means, individually and collectively (i)áofficers and executives of the Company; (ii)áemployees or contractors of Company that directly or indirectly provide or contribute to the Feedback under this Agreement; (iii)áemployees or contractors of Company, who are responsible for supervising those persons described in (ii); and (iv)áemployees or contractors of Company, who are aware of the Feedback provided by those persons described in (ii).
(d) Recipient may disclose the Software only to its employees who have a need to know in order to accomplish the purposes identified in Section 1(a), and such employeesÆ use of the Software shall take place solely at RecipientÆs site. Recipient will have executed appropriate written agreements with its employees sufficient to enable it to comply with the terms of this Agreement. Upon MicrosoftÆs request, Recipient shall provide to Microsoft a list of all employees granted access to the Software hereunder.
(e) In the event Microsoft, in its sole discretion, elects to provide deliveries of Software to more than one individual employed by Recipient (if Recipient is not a single individual), each such recipient shall be entitled to exercise the rights granted in this Agreement, and shall be bound by the terms and conditions herein.
(f) Recipient will not use the Software to circumvent or compromise MicrosoftÆs digital rights management technology ("DRM"). Microsoft reserves the right to revoke any DRM certificates used in conjunction with the Software at any time. Certificate revocation may render parts of the Software inoperable.
(g) The Software contains prerelease code that is not at the level of performance and compatibility of a final, generally available, product offering. The Software may not operate correctly and may be substantially modified prior to first commercial shipment, if any. You may not use the Software in a live operating environment where it may be relied upon to perform in the same manner as a commercially released product or with data that has not been sufficiently backed up.
3. TERM OF AGREEMENT. The term of this Agreement shall commence on the date accepted by Recipient and shall continue until terminated by Microsoft in writing at any time, with or without cause. This Agreement will terminate without notice upon the earlier of (i)ácommercial release of the Software or (ii)ásixty (60) days after the last date Recipient receives the Software or any Update thereto, unless terminated earlier by Microsoft. Upon the termination of this Agreement (or upon request by Microsoft), Recipient shall promptly return to Microsoft, or certify destruction of, all full or partial copies of the Software provided by Microsoft. The following Sections shall survive termination or expiration of this Agreement: Sections 2(b), 2(d) 7, 8, 9 and 10; and Section 5 with respect to any information that has not been made public by Microsoft as of the commercial release of the Software, provided that in no case shall Section 5 survive longer than one year from receipt of the Software.
4. SOFTWARE MAINTENANCE/UPDATES. Microsoft is not obligated to provide maintenance, technical support or updates to Recipient for the Software provided to Recipient pursuant to this Agreement. However, Microsoft may, in its sole discretion, provide further pre-release versions, technical support, updates and/or supplements of the Software and/or related information ("Updates") to Recipient hereunder, in which case such Updates shall also be deemed to be included in the "Software" and therefore governed by this Agreement, unless other terms of use are provided by Microsoft with such Updates. In no event shall Microsoft be obligated to provide Recipient a copy of the commercial release version of the Software in connection with RecipientÆs participation in the testing program. Microsoft is not obligated to make the Software commercially available.
5. CONFIDENTIALITY. The Software, including its existence and features, and related information are proprietary and confidential information to Microsoft and its suppliers. Recipient agrees not to disclose or provide the Software, documentation, or any related information (including the Software features or the results of use or testing) to any third party, for a period of one year following receipt of the Software or commercial release of the Software, whichever occurs first. However, Recipient may disclose confidential information in accordance with judicial or other governmental order, provided Recipient shall give Microsoft reasonable written notice prior to such disclosure and shall comply with any applicable protective order or equivalent. Further, Recipient shall not be liable to Microsoft for disclosure of information which Recipient can prove (a)áis already known to Recipient without an obligation to maintain the same as confidential; (b)ábecomes publicly known through no wrongful act of Recipient; (c)áis rightfully received from a third party without breach of an obligation of confidentiality owed to Microsoft; or (d)áis independently developed by Recipient.
6. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and "applets" incorporated into the Software and any features incorporated into the Hardware), and any copies of the Software that Recipient is expressly permitted to make herein, are owned by Microsoft or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants Recipient no rights to use such content. If the Software contains documentation which is provided only in electronic form, Recipient may print one copy of such electronic documentation. Recipient may not copy the printed materials accompanying the Software. All rights not expressly granted are reserved by Microsoft.
7. DISCLAIMER OF WARRANTIES. THE SOFTWARE IS DEEMED ACCEPTED BY RECIPIENT. THE SOFTWARE CONTAINS PRE-RELEASE SOFTWARE AND/OR PRE-RELEASE HARDWARE AND MAY BE CHANGED SUBSTANTIALLY BEFORE COMMERCIAL RELEASE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND ANY (IF ANY) SUPPORT SERVICES RELATED TO THE SOFTWARE ("SUPPORT SERVICES") AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM WITH RESPECT TO THE SOFTWARE AND SUPPORT SERVICES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND ANY SUPPORT SERVICES, REMAINS WITH RECIPIENT.
8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR SUPPORT SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MICROSOFT OR ANY SUPPLIER, AND EVEN IF MICROSOFT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO RECIPIENT.
9. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT RECIPIENT MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF MICROSOFT AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND RECIPIENTÆS EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY YOU BASED ON REASONABLE RELIANCE UP TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY RECIPIENT FOR THE SOFTWARE OR FIVE DOLLARS (US$5.00). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 7 AND 8 ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. GOVERNING LAW/JURISDICTION/ATTORNEYSÆ FEES. This Agreement shall be construed and controlled by the laws of the State of Washington, and Recipient consents to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington, unless no federal jurisdiction exists, in which case Recipient consents to exclusive jurisdiction and venue in the Superior Court of King County, Washington. Recipient waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.
11. U.S. GOVERNMENT RIGHTS. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
12. EXPORT RESTRICTIONS. Recipient acknowledges that Software is subject to U.S. export jurisdiction. Recipient agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see <http://www.microsoft.com/exporting/>.
13. ENTIRE AGREEMENT. This Agreement constitutes the complete and exclusive agreement between Microsoft and Recipient with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This Agreement may not be amended except in a writing duly signed by an authorized representative of Microsoft and Recipient.
