IMPORTANT NOTICE - READ BEFORE OPERATING THE UNIT AND USE OF THE TECHNOLOGY
PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT BEFORE OPERATING THE UNIT AND USING THE TECHNOLOGY.
PURCHASE AND USE OF THE TECHNOLOGY INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
TERMS AND CONDITIONS
YesVideo, Inc. (YesVideo) and Customer agree that the
following terms and conditions apply to the license granted under this
Agreement (the "Agreement") effective on delivery of the software (the
"Effective Date").
1.0 SOFTWARE LICENSE.
1.1 Rights Granted.
Subject to the terms and conditions of this Agreement, YesVideo grants
Customer a perpetual, non-exclusive, non-transferable license to use
the software program YesDVD (in object code only "Software") and any
corresponding user manuals and documentation ("Documentation", Software
and Documentation referred to together as "Technology"), to produce
YesDVD products on DVD recorders from Customers home video tapes only.
The term "Technology" shall include any corrections, enhancements,
updates or other modifications delivered to Customer.
1.2 Copying.
Customer may not make any copies of the Technology. Customer shall
have no right to copy in whole or in part the Software and the
Documentation unless permitted in writing by YesVideo. Any and all
copies of the Software and the Documentation made by the Customer are
the exclusive property of YesVideo.
1.3 License Restrictions.
Except as allowed under this Agreement, Customer agrees not to
reproduce, copy, modify, translate, reverse engineer, disassemble,
de-compile or otherwise attempt, or permit others to attempt, to
discover the source code of the Software, in whole or in part, except to
the extent that such prohibition is restricted by applicable law.
Customer agrees not to use the Software in any way to design or develop a
competing software product. Customer shall not permit any parent,
subsidiaries, affiliated entities or third parties to use the Software
and Documentation without the prior written permission of YesVideo.
Customer shall not resell or otherwise use the Software for any
commercial or retail applications.
1.4 Software Ownership.
Customer acknowledges that the Software and its sequence, structure
and organization are proprietary to YesVideo and that YesVideo retains
exclusive ownership of the Technology. Customer agrees that YesVideo
owns all intellectual and proprietary rights, including but not limited
to patent, copyright, trade secret, trademark, and other proprietary
rights, in and to the Technology and any corrections, bug fixes,
enhancements, updates or other modifications, including custom
modifications, to the Technology, whether made by YesVideo or any third
party. Customer only has the right to use the Technology as expressly
permitted under this Agreement.
1.5 Equitable Remedies.
Customer agrees that YesVideo's proprietary information is unique in
nature and that it would be inadequate to measure only the monetary
damages associated with any breach by the Customer of any of the terms
and conditions of this Agreement. Accordingly, Customer agrees that if
Customer breaches this Agreement, in addition to any other right or
remedy available to YesVideo, YesVideo has the right to obtain an
injunction from a court of competent jurisdiction restraining such
breach or threatened breach and to specific performance of any such
provision of this Agreement. Customer further agrees that no bond or
security shall be required to obtain such equitable relief and Customer
hereby consents to the issuance of such injunction and to the ordering
of such specific performance.
2.0 TERM AND TERMINATION.
This Agreement will commence on the Effective Date. The Agreement
shall automatically terminate if Customer does not comply with any of
the terms and conditions of this Agreement. Sections 1.4 ("Software
Ownership"), Section 1.5 (Equitable Remedies"), 2 ("Term and
Termination"), 3 ("Warranties"), 4 ("Limitation of Liability"), and 6
("General Provisions") shall survive any termination of this Agreement.
Upon termination of this Agreement, Customer will (i.) cease all use of
the Technology and (ii.) promptly destroy or return to YesVideo the
originals and all copies of the Technology, regardless of form or media.
3.0 WARRANTIES.
3.1 Software.
For the first thirty (30) days after purchase of the Software to
Customer YesVideo warrants to Customer that the unmodified Software will
substantially conform to the Documentation and be free of physical
defects, when properly used on the appropriate equipment. YesVideo does
not warrant that the Software will meet Customer's requirements or that
operation of the Software will be uninterrupted or error-free. This
warranty does not cover damage caused by improper use or neglect. The
Technology is furnished "AS IS" and without warrant as to the
performance or results that customer may obtain by using the Technology.
To obtain the warranty service during the thirty day warranty period
Customer may return the defective Technology with a description of the
Problem to YesVideo. The defective Technology will be replaced during
this period at no additional charge.
3.2 No Other Warranties
This limited warranty states YesVideo's sole obligation, and
Customer's exclusive remedy if the Software does not conform to the
Documentation. Except as specified in this Software License Agreement,
YesVideo makes no express, implied or statutory warranties to Customer
and disclaims all warranties of merchantability, fitness for a
particular purpose and non-infringement of third party rights. No other
person is authorized to make written or oral warranties on behalf of
YesVideo. If local law precludes the exclusion of implied warranties,
such exclusion may not apply to customer.
4.0 LIMITATION OF LIABILITY.
YesVideo will have no liability to Customer for any indirect,
incidental, special, exemplary or consequential damages (including but
not limited to lost profits or loss of data or use), whether based in
contract, tort, strict liability or any other legal theory, even if
YesVideo has been advised of the possibility of or has knowledge of the
potential loss or damages. No action, regardless of form, shall be
brought by Customer against YesVideo more than one (1) year after the
cause of the action has occurred. If the above exclusion of incidental
and consequential damages is precluded by local laws, such exclusion may
not apply to Customer.
5.0 UNITED STATES GOVERNMENT PURCHASES.
The Software and Documentation are "commercial computer software" and
"commercial computer software documentation," respectively, as such
terms are used in 48 C.F.R. 12.212 of the Federal Acquisition
Regulations ("FAR") and its successors and 48 C.F.R. 227.7202-1 through
227.7202-4 (June 1995) of the Department of Defense FAR Supplement and
its successors. All U.S. government Customers acquire the Software and
the Documentation with only those rights set forth in this Agreement.
6.0 GENERAL PROVISIONS.
6.1 Notices.
Any notice required or permitted by this Agreement shall be in writing
and shall be delivered as follows with notice deemed given as
indicated: (i.) by personal delivery when delivered personally; (ii.) by
overnight courier upon written verification of receipt; (iii.) by
telecopy or facsimile transmission upon acknowledgment of receipt of
electronic transmission; or (iv.) by certified or registered mail,
return receipt requested, upon verification of receipt. Notice shall be
sent to the addresses of each party's corporate headquarters, or such
other address as either party may specify in writing.
6.2 Assignment and Successors.
This Agreement and the Technology may not be transferred, sublicensed,
sold, or otherwise transferred by Customer without the prior written
consent of YesVideo. This Agreement will bind and inure to the
successors and assigns of Customer and YesVideo.
6.3 Disputes.
This Agreement is governed by the laws of the State of California,
without application of the principles of conflicts of laws. The United
Nations Convention on Contracts for the International Sale of Goods
shall not apply to this Agreement. In the event of a dispute, the
prevailing party is entitled to recover reasonable legal fees and court
costs.
9.7 Interpretation of Agreement.
Neither the failure nor any delay of YesVideo to exercise a right,
remedy or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of a right, remedy or
privilege by YesVideo preclude any further exercise of the same. The
waiver by either party of a breach of or right under this Agreement will
not constitute a waiver of any other breach or right. In the event that
any provision of this Agreement is held to be invalid, illegal or
unenforceable, the remaining provisions will continue in full force and
effect. This Agreement may only be amended, modified or waived by
written documents signed by authorized representative of YesVideo. This
Agreement is the complete agreement between the parties regarding this
subject matter and supersedes all previous or contemporaneous
agreements, proposals and communications, written and oral.
