YOU SHOULD READ THE FOLLOWING END USER LICENSE AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE INSTALLING THIS SOFTWARE PROGRAM. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE PROGRAM, YOU AGREE THAT YOU HAVE READ, THAT YOU UNDERSTAND, AND THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. OPENING THE PACKAGING AND/OR USING THE PROGRAM INDICATES YOUR ACCEPTANCE OF AND AGREEMENT TO THESE TERMS AND CONDITIONS.
This software program (the "Program"), any printed materials, any on-line or electronic documentation, and any and all copies and derivative works of such software program and materials are the copyrighted work of HOT-B USA, Inc. and Soar Software (collectively, the "Licensors"). All use of the Program is governed by the terms of this Agreement. The Program is solely for use by end users in accordance with the terms of this Agreement. Any use, reproduction or redistribution of the Program not in accordance with the terms of this Agreement is expressly prohibited and violative of this Agreement.
1. Grant of Limited Use License. The Licensors hereby grant, and by installing the Program you (as the "Licensee") thereby accept, a limited, non-exclusive license and right to install and use one (1) copy of the Program for your use on either a single home or portable computer for personal use only and no other purpose whatsoever. The Program is licensed, not sold. If the Program is installed on a networked system, or on a computer connected to a file server or other system that physically allows shared access to the Program, you agree to provide technical or procedural methods to prevent use of the Program by more than one user. Additional Programs (and license rights thereto) must be purchased for multiple users.
2. Ownership. No title to, or ownership of, the Program, is transferred to the Licensee. All title, ownership rights and intellectual property rights in and to the Program and any and all copies thereof (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, and "applets" incorporated into the Program) are owned by the Licensors. The Program is protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. All rights are reserved. The Program contains certain licensed materials and the Licensors may protect those rights in the event of any violation of this Agreement.
3. Your Responsibilities.
A. Subject to the grant of License hereinabove, you may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, create derivative works based on the Program, or remove or obscure any copyright, trademark or proprietary notices or labels on the Program without the prior written consent of the Licensors.
B. You are entitled to use the Program for your own use, but you are not entitled to:
(i) sell, grant a security interest in or transfer reproductions of the Program to other parties in any way, nor to rent, lease or license the Program to others without the prior written consent of the Licensor; or
(ii) exploit the Program or any of its parts for any commercial purpose including, but not limited to, use at a cyber cafΘ, computer gaming center or any other location-based site.
C. You have not been granted any trademark license as part of this Agreement and may not use the name or mark "Beat Down" or any rendition thereof for any purpose outside of the purpose stated herein. The name or mark "Beat Down" may not be used commercially or for advertisement.
D. Except as provided for in this Section 3, no other license or rights are granted to you under any patent, copyright, trade secret, or other intellectual property rights by this Agreement, either directly or by implication, estoppel, or otherwise. By downloading and using this Program, you recognize that the Program contains proprietary trade secrets belonging to the Licensors and therefore, you shall maintain confidentiality of such trade secrets using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information. If applicable, you will reasonably communicate the terms and conditions of this Agreement to your contractors and employees who come into contact with the Program, and use reasonable best efforts to ensure their compliance with such terms and conditions. You will not disclose any information relating to the Program except as set forth in this Agreement.
4. Program Transfer. You may permanently transfer all of your rights under this Agreement, provided the recipient agrees to the terms of this Agreement and you agree to remove the Program from your home or portable computer.
5. Termination. This Agreement is effective as of the time the Licensee receives the Program, and shall continue in effect until Licensee ceases all use of the Program and destroys all copies thereof, or until automatic termination upon your failure to comply with any terms of this Agreement.
6. Export Controls. The Program may not be re-exported, downloaded or otherwise exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By installing the Program, you are agreeing to the foregoing and you 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.
7. Limited Warranty. Licensors warrant the Program to be free of defect(s) in workmanship for a period of ninety (90) days from date of purchase. During this period Licensors will replace at no cost any Program returned to the place of purchase with a valid receipt. This service is the Licensors' sole liability under this warranty.
8. Disclaimers. LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN RELATION TO THE LICENSED PROGRAM, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. NO PARTY NOR ITS RESPECTIVE EMPLOYEES, AGENTS, OR REPRESENTATIVES HAS ANY RIGHT TO MAKE ANY REPRESENTATION, WARRANTY OR PROMISE ON BEHALF OF THE LICENSORS WITH RESPECT TO THE PROGRAM.
9. Limitation of Liability. PURCHASE FEES FOR THE PROGRAM DO NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION OF RISK BY LICENSORS. NEITHER LICENSORS, SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OF THE PROGRAM INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES.
10. Equitable Remedies. You hereby agree that Licensors would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that Licensors shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Licensors may otherwise have available to it under applicable laws.
11. Miscellaneous. This Agreement shall be deemed to have been made and executed in the State of California and any dispute arising hereunder shall be resolved in accordance with the law of California. You agree that any claim asserted in any legal proceeding by one of the parities against the other shall be commenced and maintained in any state or federal court located in the State of California, County of San Francisco, having subject matter jurisdiction with respect to the dispute between the parties. This Agreement may be amended, altered or modified only by an instrument in writing, specifying such amendment, alteration or modification, executed by both parties. In the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect. This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements.
BASED ON THE ABOVE, I hereby acknowledge that I have read and understand the foregoing Agreement and agree that the action of installing the Program is an acknowledgment of my agreement to be bound by the terms and conditions of this Agreement contained herein. I also acknowledge and agree that this Agreement is the complete and exclusive statement of this Agreement between Licensors and me and that this Agreement supersedes any prior or contemporaneous agreement, either oral or written, and any other communications between Licensors and myself.
