PLEASE READ THIS AGREEMENT CAREFULLY. WE LICENSE THE J. RIVER SOFTWARE AND APPLICATIONS TO YOU ONLY IF YOU ACCEPT THE TERMS IN THIS LICENSE AGREEMENT.
BY INSTALLING OR USING THIS SOFTWARE, YOU ARE AGREEING ELECTRONICALLY TO THE TERMS OF THIS AGREEMENT (THE "AGREEMENT" or "LICENSE").
J. RIVER LICENSE AGREEMENT
This Agreement applies to the PRODUCT (as defined below) provided by J. River, Inc. BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE PRODUCT, YOU ELECTRONICALLY AGREE ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT (IF APPLICABLE) THAT YOU OR SUCH ENTITY ARE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. AS THE "LICENSEE."
1. DEFINITIONS.
a) "Agreement" means this J. River License Agreement.
b) "Product" means the J. River MEDIA CENTER software product or any derivative product, whether paid or free (defined below), as applicable to Licensee, all associated software, upgrades, updates, patches, plug-ins, supplemental applications, documentation and on-line service provided by J. RIVER, its affiliates and suppliers.
c) "Documentation" means the help pages inside the program or other pages hosted on any J. River owned or operated website.
d) "J. RIVER Plug-in" means a plug-in (a small software program that adds a specific capability to another program) owned and offered by J. River as part of the PRODUCT download and/or via any J. River owned or operated jrmediacenter.com website.
e) "Skin" means a graphical interface for the PRODUCT that changes the look but not the functionality, and includes the text files that define how the skin is built, the scripts that define how it should behave, and the graphics that create the visual look.
f) "Update" means a revision to the PRODUCT designated by a change in the version number to the right of the decimal place.
g) "Upgrade" means a revision to the PRODUCT designated by a change in the version number to the left of the decimal place.
h) “Free Product” means a PRODUCT which an end-user has obtained without cost directly from J. River or from a distributor who has written authorization from J. River to distribute the PRODUCT. Distribution without authorization is prohibited.
2. LICENSE GRANT. For a PRODUCT which is not FREE, provided Licensee complies with the terms and conditions of this Agreement and has paid the applicable license fees for the PRODUCT, J. RIVER grants Licensee a personal, non-exclusive, and non-transferable license to install and use the PRODUCT. Upon J. River's receipt of the applicable license fees, a serial number key will be issued to Licensee to unlock the PRODUCT.
Certain versions of the PRODUCT may be FREE, but the free use applies only to end-users and not to any business or other organization unless authorized in writing by J. River. For a FREE PRODUCT which has no cost to the end-user, subject to Licensee's compliance with the terms and conditions of this Agreement, J. River grants Licensee a free-of-charge, personal, non-exclusive, and non-transferable license to install and use the SOFTWARE.
3. RESTRICTIONS ON USE. Licensee may not: (i) modify or create any derivative works of the PRODUCT; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to (a) derive the source code, underlying ideas, algorithms, structure or organization of the PRODUCT, or (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the PRODUCT (except to the extent applicable laws specifically prohibit such restriction); (iii) attempt to access or use the premium features of the PRODUCT if Licensee has not paid the applicable fees or by any manner or method other than using the key provided by J. River; (iv) redistribute, encumber, sell, rent, lease, sub-license, or otherwise transfer the PRODUCT or rights thereto; (v) use the PRODUCT to reproduce, display, perform, or distribute audio and/or video content in any manner that violates any U.S. or foreign laws or regulations or any third-party's rights, including copyright, privacy or publicity rights, or other intellectual property right; (vi) use the PRODUCT in a timesharing or service bureau arrangement; or (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the PRODUCT. The J. River produced Skins that are provided with the PRODUCT may only be used with the PRODUCT and may not be used with any other media player or other third-party product.
Supply of this PRODUCT does not convey a license nor imply any right to distribute content created with this PRODUCT in revenue-generating broadcast systems (terrestrial, satellite, cable and/or other distribution channels), revenue-generating streaming applications (via Internet, intranets and/or other networks), other revenue-generating content distribution systems (pay-audio or audio-on-demand applications and the like) or on commercially distributed physical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like). An independent license for such use is required. For details, please visit http://www.jrmediacenter.com
4. NEED FOR CONTENT LICENSES. This license provides no rights with respect to any musical compositions, sound recordings, video recordings, or other audio and/or video materials ("Content") that may be reproduced, encoded, distributed, transmitted, performed, or otherwise used in connection with the PRODUCT. Licensee alone is responsible for ensuring that any Content is properly used in accordance with applicable laws and the rights of any third-party with respect to such Content.
5. SUPPORT. Licensee will have access to community forums, FAQs, and other online self help services, but will not be entitled to receive from J. RIVER any technical support or telephone assistance. Use of community forums and other online service are subject to additional terms.
6. FEES. A license fee may be required in order to receive a key to access the features of the PRODUCT. Fee information is available at: http://www.jrmediacenter.com
7. UPGRADES AND UPDATES. This license does not entitle Licensees of the PRODUCT to Updates or Upgrades to the PRODUCT. If Updates or Upgrades to the PRODUCT are made available, they will be available from http://www.jrmediacenter.com and will be subject to J. River's then current license agreement and payment of additional license fees, if any.
8. LICENSEE REPRESENTATIONS. Licensee represents and warrants that it has the legal capacity to enter into this Agreement, that it will use the PRODUCT only for lawful purposes and in accordance with this Agreement, and that it will not use the PRODUCT to violate any law, regulation or ordinance or any right of J. River or its licensors or any third-party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. Licensee further represents and warrants that Licensee has adequate legal capacity to enter into binding agreements such as this Agreement.
9. ONLINE SERVICES. J. River, its affiliates and suppliers may provide online services for use with the PRODUCT. J. River may change or cancel those services at any time. In order to use these interactive services, you will need to register and obtain log-in credentials, such as a User ID. You must agree to abide by the terms and conditions that may apply to any interactive online service that you elect to use with the PRODUCT.
10. ELECTRONIC NOTICE DELIVERY POLICY. J. River, when possible, communicates with users of its PRODUCT electronically. WHEN YOU PROVIDE J. RIVER WITH YOUR EMAIL ADDRESS, E.G. IN ORDER TO RECEIVE THE KEY FOR THE PRODUCT OR TO RECEIVE NEWSLETTERS, YOU CONSENT TO RECEIVE ELECTRONICALLY FROM J. RIVER ANY PRIVACY OR OTHER NOTICES, AGREEMENTS, DISCLOSURES, REPORTS, DOCUMENTS, COMMUNICATIONS, OR OTHER RECORDS (COLLECTIVELY, "NOTICES"). You agree that J. River generally can send you electronic Notices to the e-mail address that you provided to J. River, if any.
11. TERMINATION. Should Licensee breach this Agreement, Licensee's right to use the PRODUCT shall terminate immediately and without notice. The respective rights and obligations of J. River and Licensee under the provisions of Sections 3 ("Restrictions on Use"), 4 ("Need for Content Licenses"), 10 ("Electronic Notice Delivery Policy"), 11 ("Termination"), 12 ("Proprietary Rights"), 13 ("Indemnification"), 16 ("Limitation of Liability"), 20 ("Third-Party Services or Products") and 21 ("Miscellaneous") shall survive expiration or termination of this Agreement and Licensee agrees to continue to be bound by those terms. Upon termination, Licensee shall destroy all copies of the PRODUCT.
12. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the PRODUCT shall remain in J. River and/or its licensors and other suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with J. River's or its licensors' or other suppliers' ownership of or rights with respect to the PRODUCT. The PRODUCT is protected by copyright and other intellectual property laws and by international treaties. All trademarks used in connection with the PRODUCT are owned by J. RIVER, its affiliates or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. Title and related rights in the Content are the property of the applicable content owners and are protected by applicable law. Licensee agrees that J. River may use in any manner and without limitation all comments, suggestions, complaints and other feedback Licensee provides relating to the PRODUCT.
13. INDEMNIFICATION. Licensee agrees to indemnify, hold harmless, and at J. River’s request, to defend J. River, its affiliates, licensors and suppliers from any and all costs, damages and reasonable attorneys' fees resulting from any breach of this Agreement or claim that Licensee's use of the PRODUCT has injured or otherwise violated any right of any third party or violates any law.
14. LIMITED WARRANTY. Provided Licensee has paid the applicable license fees for the PRODUCT and is in compliance with the terms and conditions hereof, for sixty (60) days after the date of download of the PRODUCT (the "Warranty Period"), J. RIVER warrants that the unmodified PRODUCT, when properly installed and used, will substantially achieve the functionality described in the applicable Documentation. This limited warranty does not apply for plug-ins or supplemental applications that you may subsequently elect to install and use with the PRODUCT. THIS LIMITED EXPRESS WARRANTY FOR THE PRODUCT CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE PRODUCT. J. RIVER AND ITS LICENSORS AND OTHER SUPPLIERS DO NOT MAKE, AND HEREBY EXCLUDE AND DISCLAIM, ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCT AND ANY UPDATES OR UPGRADES THERETO, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT OF THIRD PARTIES' RIGHTS, AND SECURE, ERROR-FREE OR UNINTERRUPTED OPERATION. J. RIVER AND ITS LICENSORS AND OTHER SUPPLIERS SHALL HAVE NO OBLIGATIONS UNDER THE WARRANTY PROVISIONS SET FORTH HEREIN IF LICENSEE ALTERS OR MODIFIES THE PRODUCT; USES THE PRODUCT ON A COMPUTER SYSTEM OR IN A MANNER NOT SPECIFIED BY J. RIVER; OR LICENSEE VIOLATES THE TERMS OF THIS AGREEMENT. IN THE EVENT OF A BREACH OF THIS WARRANTY, AND IF LICENSEE PROVIDES J. RIVER WITH A WRITTEN REPORT DURING THE WARRANTY PERIOD OF ANY ERRORS OR FAILURES, J. RIVER WILL USE REASONABLE EFFORTS TO PROMPTLY CORRECT, REPLACE OR PROVIDE A WORK AROUND FOR SUCH ERROR OR FAILURE, AT NO CHARGE TO LICENSEE, OR AT J. RIVER'S SOLE OPTION, PROVIDE A REFUND TO LICENSEE. THIS IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES HEREUNDER. NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES; HOWEVER, THE EXCLUSIONS OF J. RIVER'S WARRANTY IN THIS LIMITED WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
15. DISCLAIMER OF WARRANTY FOR THE PRODUCT. THIS PRODUCT IS PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. J. RIVER, ITS LICENSORS AND OTHER SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES THAT THE PRODUCT IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE PRODUCT WILL MEET LICENSEE'S REQUIREMENTS, OR THAT ERRORS IN THE PRODUCT WILL BE CORRECTED, AND THE IMPLIED WARRANTIES THAT THE PRODUCT IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, J. RIVER, ITS LICENSORS AND OTHER SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCT IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY J. RIVER OR A J. RIVER AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. J. RIVER AND ITS LICENSORS AND OTHER SUPPLIERS HAVE NO LIABILITY WITH RESPECT TO LICENSEE'S USE OF THE PRODUCT. LICENSEE BEARS THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE AND ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
16. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL J. RIVER, J. RIVER LLC, OR THEIR RESPECTIVE PARENTS, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "J. RIVER GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE J. RIVER GROUP'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR PRODUCT, AS DETERMINED AT J. RIVER'S SOLE DISCRETION, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF J. RIVER TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ADDITIONALLY, THE J. RIVER GROUP SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF: (i) CONTENT PROVIDED BY LICENSEE OR A THIRD-PARTY THAT IS ACCESSED THROUGH OR USED WITH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT; OR (ii) THE USE OF PLUG-INS OR SKINS DEVELOPED BY THIRD PARTIES AND MADE AVAILABLE ON J. RIVER'S WEBSITES FOR USE WITH THE PRODUCT.
17. EXPORT CONTROLS. Licensee agrees to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export, re-export or import the PRODUCT or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. For example, Licensee may not export or re-export any commodities, software, or technical data received from J. River, or any direct product of such commodities, software or technical data, to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. Government unless properly authorized. As applicable, each party shall obtain and bear all expenses and responsibility relating to any necessary licenses and/or exemptions with respect to its own export or re-export of the PRODUCT from the U.S.
18. INJUNCTIVE RELIEF. Licensee acknowledges and agrees that, notwithstanding any other provisions of this Agreement, any breach or threatened breach of this Agreement by Licensee shall cause J. River irreparable damage for which recovery of money damages would be inadequate and that J. River therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
19. U.S. GOVERNMENT END-USERS. Each PRODUCT is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End-Users acquire the PRODUCT with only those rights as set forth herein.
20. THIRD-PARTY SERVICES OR PRODUCTS.
(a) The PRODUCT may contain links to other web sites, resources and advertisers. J. River is not responsible for the availability of these external sites nor does it endorse, or is it responsible for, the aesthetics, appeal, suitability to taste or subjective quality of informational content, advertising, products or other materials made available on or through such external sites. Under no circumstances shall J. River or any of the affiliated providers be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to Licensee in connection with the use of or reliance on any content, goods or services available on such external sites. Licensee should direct any concerns to such external sites' administrator or Webmaster.
(b) Licensee agrees and understands that the PRODUCT may include from time to time offerings for certain third-party services, products or supplemental applications for download or use with the PRODUCT ("Supplemental Applications"). Such Supplemental Applications are subject to this Agreement and may be subject to additional terms and conditions or registration requirements. Licensee agrees to abide by these additional terms and further agrees that a violation of those terms shall constitute a breach of this Agreement.
(c) Third parties may offer from time to time applications or services to access, "plug-in" or interact with the PRODUCT. Licensee's use of such third-party applications will be at Licensee's own risk and subject to the terms and conditions of those third parties. J. RIVER DOES NOT REPRESENT AND WARRANT THAT ACCESS AND USE OF THE PRODUCT THROUGH OR WITH THESE THIRD-PARTY APPLICATIONS OR THIRD-PARTY OFFERINGS WILL BE COMPATIBLE, UNINTERRUPTED, ERROR FREE, WITHOUT DEFECTS OR THAT LICENSEE WILL BE ABLE TO ACCESS OR USE THE PRODUCT AT ALL TIMES AND LOCATIONS OF ITS CHOOSING. LICENSEE AGREES THAT J. RIVER IS UNDER NO OBLIGATION TO PROVIDE LICENSEE WITH ANY ERROR CORRECTIONS, UPDATES, UPGRADES, FIXES AND/OR ENHANCEMENTS TO MAKE THE PRODUCT ACCESSIBLE THROUGH OR COMPATIBLE WITH THESE THIRD-PARTY APPLICATIONS OR THIRD-PARTY OFFERINGS.
21. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of J. River. (b) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of Minnesota, U.S.A., excluding its conflict of law provisions. (c) Licensee expressly agrees that jurisdiction for any claim or dispute relating to or arising out of this Agreement resides exclusively in the federal and state courts of Minnesota and expressly consents to the personal jurisdiction thereof. (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (e) If any provision in this Agreement should be held illegal or unenforceable, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect, or J. River may at its option instead terminate this Agreement. (f) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (g) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. J. River may assign this Agreement to any entity at its sole discretion. (h) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (i) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
