This is a legal agreement ("Agreement") between you (either an individual or an entity), the end user ("Recipient"), and Microsoft Corporation ("Microsoft"). BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR USE THE SOFTWARE.
MICROSOFT CORPORATION LICENSE AGREEMENT
FOR THE PRE-RELEASE VERSION OF
MICROSOFT WINDOWS MEDIA FORMAT SOFTWARE DEVELOPMENT KIT 9 SERIES
Accompanying this Agreement is a pre-release copy of the Microsoft product identified above, which may include software, and related documentation and information (collectively the "Software"). 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, worldwide, fully paid-up, 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, lend, sell, sublicense, assign, or otherwise transfer any portion of the Software.
(b) Recipient may not reverse engineer, decompile or disassemble or otherwise seek to discover the source code, components, codecs, digital rights management, format or other protocols associated with the Software (other than the sample source code), except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(c) 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.
(d) 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).
(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").
(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. Recipient 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. Recipient may not use the Software for benchmark or performance testing.
3. DIGITAL RIGHTS MANAGEMENT. Content providers are using DRM to protect the integrity of their content ("Secure Content") so that their intellectual property, including copyright, in such content is not misappropriated. Portions of this Software and third party applications such as media players use DRM to play Secure Content ("DRM Software"). If the DRM SoftwareÆs security has been compromised, owners of Secure Content ("Secure Content Owners") may request that Microsoft revoke the DRM SoftwareÆs right to copy, display and/or play Secure Content. Revocation does not alter the DRM SoftwareÆs ability to play unprotected content. A list of revoked DRM Software is sent to your computer whenever you download a license for Secure Content from the Internet. You therefore agree that Microsoft may, in conjunction with such license, also download revocation lists onto your computer on behalf of Secure Content Owners. Microsoft will not retrieve any personally identifiable information, or any other information, from your computer by downloading such revocation lists. Secure Content Owners may also require you to upgrade some of the DRM components on your computer ("DRM Upgrades") before accessing their content. When you attempt to play such content, Microsoft DRM Software will notify you that a DRM Upgrade is required and then ask for your consent before the DRM Upgrade is downloaded. Third party DRM Software may do the same. If you decline the upgrade, you will not be able to access content that requires the DRM Upgrade; however, you will still be able to access unprotected content and Secure Content that does not require the upgrade.
4. 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)áone hundred eighty (180) 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), 8, 9, 10 and 11.
5. COST OF TESTING. There is no charge to Recipient for testing of the Software. Microsoft shall bear all direct freight expenses relating to the shipment of the Software to RecipientÆs place of business and Recipient will pay any return freight expenses.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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 8 AND 9 ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11. 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. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.
12. 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.
13. EXPORT RESTRICTIONS. Recipient acknowledges that Product is of U.S. origin. Recipient agrees to comply with all applicable international and national laws that apply to the Product, 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/>.
14. 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.
