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PLEASE READ THIS AGREEMENT CAREFULLY END USER SOFTWARE LICENSE AGREEMENT
THIS LICENSE AGREEMENT RELATES TO ALL COMPUTER SOFTWARE, WHETHER DOWNLOADED ELECTRONICALLY (ELECTRONIC SOFTWARE DELIVERY SHALL BE REFERRED TO HEREIN AS "ESD") OR CONTAINED WITHIN A PHYSICAL “OPTICAL DISC”, WHICH SHALL INCLUDE, WITHOUT LIMITATION, ANY CD-ROM, DVD-ROM, HD-ROM, BLUE RAY DISC, USB DRIVE, OR OTHER TYPE OF OPTICAL DISC OR OTHER MEDIA USED OR CREATED IN THE FUTURE, AND THE ACCOMPANYING USER DOCUMENTATION CONTAINED EITHER WITHIN THE DOWNLOADED CONTENT OR ON THE PHYSICAL OPTICAL DISC (THE "SOFTWARE"). THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD) TO YOU.ENCORE IS WILLING TO GRANT YOU THE LICENSE TO USE THE SOFTWARE ACCORDING ONLY ON THE CONDITION THAT YOU ACCEPT ALL TERMS IN THIS AGREEMENT.
BY CLICKING ON THE "YES" OR "ACCEPT" BUTTON BELOW OR OTHERWISE COMPLETING THE INSTALLATION PROCESS, YOU ACKNOWLEDGE THAT YOU ARE OF THE AGE OF MAJORITY AND HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, YOU SHOULD CLICK ON THE "NO" OR "DO NOT ACCEPT" BUTTON BELOW OR OTHERWISE DISCONTINUE THE INSTALLATION PROCESS. IN SUCH CASE, ANY AMOUNTS ALREADY PAID BY YOU MAY BE REFUNDED BY THE RETAILER FROM WHICH YOU PURCHASED THE SOFTWARE, SUBJECT TO ITS REFUND POLICY, OR IF YOU PURCHASED THE LICENSE TO THE SOFTWARE DIRECTLY FROM ENCORE, YOU MAY PROMPTLY RETURN THE SOFTWARE FOR A FULL REFUND OF THE AMOUNT PAID (BUT NOT YOUR SHIPPING COSTS, IF ANY) BY PROVIDING THE FOLLOWING MANDATORY ITEMS TO ENCORE: (A) THE COMPLETE PRODUCT IN GOOD CONDITION (ALL DISCS, MANUALS AND PRINTED MATERIALS); (B) THE BOX WITH THE UPC CODE INTACT; (C) YOUR ORIGINAL DATED RECEIPT; AND (D) A LETTER OR CARD WITH YOUR FULL NAME AND RETURN MAILING ADDRESS. PLEASE SEND THE MANDATORY ITEMS TO THE FOLLOWING ADDRESS: ENCORE SOFTWARE, INC., 230 2ND ST. SE, SUITE 302, CEDAR RAPIDS, IA 52401.
1. COPYRIGHT. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, music, text and "applets" incorporated into the Software) and any printed materials accompanying the Software are owned by Encore or its Encores.
2. GRANT OF LICENSE. The Software is licensed and not sold to you and its use is subject to this Agreement. Subject to the terms and conditions of this Agreement and in consideration of Your agreement to be bound by this Agreement, Encore grants You a limited, personal, non-exclusive license to reproduce as necessary to install and use the Software in the manner described in the user documentation. Encore reserves all rights not expressly granted to You in this Agreement. You agree to pay any sales, use, value added, or other tax or charge imposed or assessed by any governmental entity.
3. PERMITTED USES. You may install and use the Software only on a single computer. You may make and maintain one copy of the Software (including user documentation) for backup and archival purposes, provided that the original and copy of the Software are kept in your possession and you reproduce all copyright and other proprietary notices that are on the original copy of the Software. You may permanently transfer all your rights under this Agreement, provided you give Encore prior written notice, You retain no copies, You transfer all of the Software (including all component parts, the media and printed materials and any upgrades) and the recipient reads and accepts this Agreement. Any assignment in derogation of the foregoing shall be null and void.
4. DIGITAL RIGHTS MANAGEMENT AND PRIVACY.
a. This product contains hyperlinks to third party web sites on the World Wide Web (the "Linked Sites"). You acknowledge and agree that (i) the Linked Sites are not under the control of Encore; (ii) Encore is not responsible or liable for the content, advertising, expiration, availability, changes or updates related to any Linked Sites or hyperlink contained in a Linked Site, or any goods or services made available on such Linked Sites; and (iii) Encore is not responsible for webcasting, software, download or any other form of transmission or media received from any Linked Site. Linked Sites are provided to you only as a convenience, and the inclusion of any Linked Sites does not imply endorsement by Encore of any such Linked Sites. You acknowledge and agree that Encore shall not be responsible or liable, either directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance upon any content, goods or services available on or through any such Linked Site. YOU ASSUME RESPONSIBILITY FOR ALL USE OF OR ACCESS TO LINKED SITES, AND ACCESS THE SAME AT YOUR OWN RISK. ENCORE EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR LINKED SITES. LINKED SITES ARE MADE AVAILABLE TO YOU WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY ENCORE, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY.
b. If the Software is enabled to provide online features, You may voluntarily submit information to Encore such as Your user name, password, high scores, medals, chat text, or content that You create or access through the Software ("Online Services").You hereby consent that such information is subject to Encore’s Privacy Policy (http://www.broderbund.com/c-18-privacy-policy.aspx) and Terms & Conditions (http://www.broderbund.com/c-27-terms-conditions.aspx).
c. The Software may include digital rights management technologies and/or a registration application (collectively, “Wrapper”) provided by the distributor of your copy of the Software. This Wrapper may be used to collect personal information from you in order to activate a game in order to prevent unauthorized use or to register your product. Encore has no control over or liability for any third party digital rights management technology and you should contact the retailer from whom you purchased your copy of the Software for their policies. Where Encore's digital rights management technologies are used, Encore's collection, use, disclosure, and protection of personal information is described in Encore's Privacy Policy. You expressly consent to processing of your personal information, in accordance with the Privacy Policy, in the country in which You reside as well as in other jurisdictions, such as the United States, which may have less stringent laws regarding the processing of personal information. You expressly consent to Encore's use of cookies, any data you submit during registration or otherwise, clear GIFs, and digital rights management when you use Encore's services or access the game, as described in the Privacy Policy. You also consent to Encore's use of a game updater technology that will automatically search Your computer for previously downloaded Encore games (including the version and time played) so Encore may offer updates and promotional upgrades to you. For optional updates and promotional upgrades you will be asked if you want the update or upgrade prior to transmission of game information to Encore; for critical updates a notification will appear in the game window. The digital rights management may also disallow or disable access to the Software where Encore has reason to believe it is being used in violation of these terms or where the term of this Agreement has ended.
5. TECHNICAL SUPPORT. Technical support for the Software is available at http://www.support.encore.com.
6. RESTRICTIONS. You may not delete or obscure any copyright, trademark or other proprietary notice on the Software or accompanying printed materials. Except as expressly permitted by applicable law, You may not decompile, modify, reverse engineer, disassemble or otherwise reproduce the Software. You may not copy, rent, lease, sell, sublicense, distribute, publicly display the Software, create derivative works based on the Software or otherwise commercially exploit the Software. You may not sell, resell, or distribute unlock keys whether purchased from an authorized distributor or generated independently. You may not evade the digital rights management technology, copyright protection, access restrictions or other authorization mechanisms for the Software. You may not electronically transmit the Software from one computer, console or other platform to another or over a network. You may not circumvent any encrypted data protections or gain access to data that is not licensed. You may not use any backup or archival copy of the Software for any purpose other than to replace the original copy in the event it's destroyed or becomes defective. If this Software allows you to purchase licenses to upgrades and features (new levels, characters, in-game items) at the Encore online store ("Game Items"), all such Game Items, even if licensed at a later date, are part of this Software and subject to this end user license agreement. Accordingly, you may not sell or transfer the Game Items and all such transfer or sale is null and void. Any unauthorized reproduction or modification, distribution, or performance of the Software including any Game Items is strictly prohibited.
7. FEES AND PAYMENT. The license fees paid by You are paid in consideration of the licenses granted under this Agreement and any license agreement accepted by You in connection with an electronic download of the Software.
8. TERMINATION. This Agreement is effective from the time You open the Software until it is terminated. You may terminate this Agreement at any time by destroying the Software or by following those steps set forth in the box at the beginning of the Agreement in the event the terms of this Agreement are not accepted by You. This Agreement will terminate automatically without notice from Encore if You fail to comply with any provision of this Agreement. Upon notice of termination, You agree to promptly destroy all of Your copies of the Software. There shall be no refund if this Agreement is terminated by Encore for Your failure to comply with the terms of this Agreement. All provisions of this Agreement as to warranties, limitation of liability, remedies and damages will survive termination. The parties agree to waive any provisions, procedures and the operation of any legislation to the extent that a court order or approval is required to terminate this Agreement.
9. LIMITED WARRANTY . Excluding the Linked Sites, Encore warrants, for Your benefit alone, for a period of 90 days from the date of commencement of this License Agreement (referred to as "Warranty Period") that the Software and the Optical Disc in which the Software is contained is free from defects in material and workmanship. This limited warranty is void if failure of the Software has resulted from accident, abuse, neglect or misapplication. If during the Warranty Period, a defect in the Software appears, You may return the physical Optical Disc containing the Software to Encore for either replacement, or, if so elected by Encore, refund of amounts paid by You under this License Agreement. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Except for the warranties set forth above, the Software, including without limitation the Optical Disc in which the Software is contained, if any, is provided to You "As Is" and Encore and its suppliers expressly disclaim all warranties and conditions, express, implied or statutory, including without limitation the implied warranties or conditions of merchantability, fitness for a particular purpose, and non-infringement. No oral or written information or advice given by Encore, its employees, distributors, dealers, or agents shall increase the scope of the above warranties or create any new warranties.
10. REMEDIES; LIMITATION OF REMEDIES AND LIABILITIES.
a. Your exclusive remedy shall be, at Encore’s sole option, (i) the refund of the amount You paid for the Software; or (ii) repair or replacement of the Software, provided that such defective Optical Disc is returned to Encore at Encore Software, Inc., Attn: Customer Service, 230 2nd ST. SE, Suite 302, Cedar Rapids, IA 52401, and proof of the date of purchase is submitted to Encore within ninety (90) days from the date of purchase. You agree that the foregoing constitutes Your sole and exclusive remedy for breach by Encore of any warranties made under this Agreement.
b. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL ENCORE OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (WHETHER BASED IN CONTRACT, TORT, OR STATUTE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF ENCORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
c. IN NO EVENT SHALL THE LIABILITY OF ENCORE EXCEED THE AMOUNT RECEIVED BY ENCORE FROM YOU UNDER THIS AGREEMENT OR ONE U.S. DOLLAR ($1.00) IF ENCORE IS NOT IN RECEIPT OF ANY MONIES FROM YOU.
d. In jurisdictions that do not allow the exclusion or limitation of liability for consequential, special or incidental damages, Encore's liability under this Agreement shall be limited to the maximum extent permitted by applicable law. Nothing in this Agreement limits Encore's liability for fraudulent misrepresentation or for death or physical injury directly caused by Encore's negligence.
e. Encore shall have the right to obtain injunctive or administrative relief in any court of competent jurisdiction or through any administrative authority having jurisdiction over a party in the event of a breach of the terms of this Agreement.
11. EXPORT CONTROL. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export or import as may be required.
12. GENERAL. This Agreement will be governed by the laws of the State of California in the United States of America, without regard to or application of conflicts of law rules or principles. The Federal and State Courts located in Los Angeles County shall have sole jurisdiction over any disputes arising hereunder and the parties hereby submit to the personal jurisdiction of such courts. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force. In the event any proceeding or lawsuit is brought by Encore or You in connection with this Agreement, the prevailing party in such proceeding or lawsuit shall be entitled to receive its costs, expert witness fees and reasonable attorney's fees, including costs and fees on appeal. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof, unless the waiver is in writing by You or an authorized agent of Encore, be taken or held to be a waiver of the provision itself. This Agreement is the complete and exclusive statement of the agreement between Encore and You which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. This Agreement shall not be modified except by a subsequently dated written amendment or exhibit signed by both parties by their duly authorized representatives. You represent that You have entered into this Agreement of Your own free will and that You are above the age of minority at the time You agree to this Agreement or that Your legal guardian consents to these terms on Your behalf.
THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
© 2015 Encore Software, Inc. All rights reserved.
THIS LICENSE AGREEMENT RELATES TO ALL COMPUTER SOFTWARE, WHETHER DOWNLOADED ELECTRONICALLY (ELECTRONIC SOFTWARE DELIVERY SHALL BE REFERRED TO HEREIN AS "ESD") OR CONTAINED WITHIN A PHYSICAL “OPTICAL DISC”, WHICH SHALL INCLUDE, WITHOUT LIMITATION, ANY CD-ROM, DVD-ROM, HD-ROM, BLUE RAY DISC, USB DRIVE, OR OTHER TYPE OF OPTICAL DISC OR OTHER MEDIA USED OR CREATED IN THE FUTURE, AND THE ACCOMPANYING USER DOCUMENTATION CONTAINED EITHER WITHIN THE DOWNLOADED CONTENT OR ON THE PHYSICAL OPTICAL DISC (THE "SOFTWARE"). THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD) TO YOU.ENCORE IS WILLING TO GRANT YOU THE LICENSE TO USE THE SOFTWARE ACCORDING ONLY ON THE CONDITION THAT YOU ACCEPT ALL TERMS IN THIS AGREEMENT.
BY CLICKING ON THE "YES" OR "ACCEPT" BUTTON BELOW OR OTHERWISE COMPLETING THE INSTALLATION PROCESS, YOU ACKNOWLEDGE THAT YOU ARE OF THE AGE OF MAJORITY AND HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, YOU SHOULD CLICK ON THE "NO" OR "DO NOT ACCEPT" BUTTON BELOW OR OTHERWISE DISCONTINUE THE INSTALLATION PROCESS. IN SUCH CASE, ANY AMOUNTS ALREADY PAID BY YOU MAY BE REFUNDED BY THE RETAILER FROM WHICH YOU PURCHASED THE SOFTWARE, SUBJECT TO ITS REFUND POLICY, OR IF YOU PURCHASED THE LICENSE TO THE SOFTWARE DIRECTLY FROM ENCORE, YOU MAY PROMPTLY RETURN THE SOFTWARE FOR A FULL REFUND OF THE AMOUNT PAID (BUT NOT YOUR SHIPPING COSTS, IF ANY) BY PROVIDING THE FOLLOWING MANDATORY ITEMS TO ENCORE: (A) THE COMPLETE PRODUCT IN GOOD CONDITION (ALL DISCS, MANUALS AND PRINTED MATERIALS); (B) THE BOX WITH THE UPC CODE INTACT; (C) YOUR ORIGINAL DATED RECEIPT; AND (D) A LETTER OR CARD WITH YOUR FULL NAME AND RETURN MAILING ADDRESS. PLEASE SEND THE MANDATORY ITEMS TO THE FOLLOWING ADDRESS: ENCORE SOFTWARE, INC., 230 2ND ST. SE, SUITE 302, CEDAR RAPIDS, IA 52401.
1. COPYRIGHT. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, music, text and "applets" incorporated into the Software) and any printed materials accompanying the Software are owned by Encore or its Encores.
2. GRANT OF LICENSE. The Software is licensed and not sold to you and its use is subject to this Agreement. Subject to the terms and conditions of this Agreement and in consideration of Your agreement to be bound by this Agreement, Encore grants You a limited, personal, non-exclusive license to reproduce as necessary to install and use the Software in the manner described in the user documentation. Encore reserves all rights not expressly granted to You in this Agreement. You agree to pay any sales, use, value added, or other tax or charge imposed or assessed by any governmental entity.
3. PERMITTED USES. You may install and use the Software only on a single computer. You may make and maintain one copy of the Software (including user documentation) for backup and archival purposes, provided that the original and copy of the Software are kept in your possession and you reproduce all copyright and other proprietary notices that are on the original copy of the Software. You may permanently transfer all your rights under this Agreement, provided you give Encore prior written notice, You retain no copies, You transfer all of the Software (including all component parts, the media and printed materials and any upgrades) and the recipient reads and accepts this Agreement. Any assignment in derogation of the foregoing shall be null and void.
4. DIGITAL RIGHTS MANAGEMENT AND PRIVACY.
a. This product contains hyperlinks to third party web sites on the World Wide Web (the "Linked Sites"). You acknowledge and agree that (i) the Linked Sites are not under the control of Encore; (ii) Encore is not responsible or liable for the content, advertising, expiration, availability, changes or updates related to any Linked Sites or hyperlink contained in a Linked Site, or any goods or services made available on such Linked Sites; and (iii) Encore is not responsible for webcasting, software, download or any other form of transmission or media received from any Linked Site. Linked Sites are provided to you only as a convenience, and the inclusion of any Linked Sites does not imply endorsement by Encore of any such Linked Sites. You acknowledge and agree that Encore shall not be responsible or liable, either directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance upon any content, goods or services available on or through any such Linked Site. YOU ASSUME RESPONSIBILITY FOR ALL USE OF OR ACCESS TO LINKED SITES, AND ACCESS THE SAME AT YOUR OWN RISK. ENCORE EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR LINKED SITES. LINKED SITES ARE MADE AVAILABLE TO YOU WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY ENCORE, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY.
b. If the Software is enabled to provide online features, You may voluntarily submit information to Encore such as Your user name, password, high scores, medals, chat text, or content that You create or access through the Software ("Online Services").You hereby consent that such information is subject to Encore’s Privacy Policy (http://www.broderbund.com/c-18-privacy-policy.aspx) and Terms & Conditions (http://www.broderbund.com/c-27-terms-conditions.aspx).
c. The Software may include digital rights management technologies and/or a registration application (collectively, “Wrapper”) provided by the distributor of your copy of the Software. This Wrapper may be used to collect personal information from you in order to activate a game in order to prevent unauthorized use or to register your product. Encore has no control over or liability for any third party digital rights management technology and you should contact the retailer from whom you purchased your copy of the Software for their policies. Where Encore's digital rights management technologies are used, Encore's collection, use, disclosure, and protection of personal information is described in Encore's Privacy Policy. You expressly consent to processing of your personal information, in accordance with the Privacy Policy, in the country in which You reside as well as in other jurisdictions, such as the United States, which may have less stringent laws regarding the processing of personal information. You expressly consent to Encore's use of cookies, any data you submit during registration or otherwise, clear GIFs, and digital rights management when you use Encore's services or access the game, as described in the Privacy Policy. You also consent to Encore's use of a game updater technology that will automatically search Your computer for previously downloaded Encore games (including the version and time played) so Encore may offer updates and promotional upgrades to you. For optional updates and promotional upgrades you will be asked if you want the update or upgrade prior to transmission of game information to Encore; for critical updates a notification will appear in the game window. The digital rights management may also disallow or disable access to the Software where Encore has reason to believe it is being used in violation of these terms or where the term of this Agreement has ended.
5. TECHNICAL SUPPORT. Technical support for the Software is available at http://www.support.encore.com.
6. RESTRICTIONS. You may not delete or obscure any copyright, trademark or other proprietary notice on the Software or accompanying printed materials. Except as expressly permitted by applicable law, You may not decompile, modify, reverse engineer, disassemble or otherwise reproduce the Software. You may not copy, rent, lease, sell, sublicense, distribute, publicly display the Software, create derivative works based on the Software or otherwise commercially exploit the Software. You may not sell, resell, or distribute unlock keys whether purchased from an authorized distributor or generated independently. You may not evade the digital rights management technology, copyright protection, access restrictions or other authorization mechanisms for the Software. You may not electronically transmit the Software from one computer, console or other platform to another or over a network. You may not circumvent any encrypted data protections or gain access to data that is not licensed. You may not use any backup or archival copy of the Software for any purpose other than to replace the original copy in the event it's destroyed or becomes defective. If this Software allows you to purchase licenses to upgrades and features (new levels, characters, in-game items) at the Encore online store ("Game Items"), all such Game Items, even if licensed at a later date, are part of this Software and subject to this end user license agreement. Accordingly, you may not sell or transfer the Game Items and all such transfer or sale is null and void. Any unauthorized reproduction or modification, distribution, or performance of the Software including any Game Items is strictly prohibited.
7. FEES AND PAYMENT. The license fees paid by You are paid in consideration of the licenses granted under this Agreement and any license agreement accepted by You in connection with an electronic download of the Software.
8. TERMINATION. This Agreement is effective from the time You open the Software until it is terminated. You may terminate this Agreement at any time by destroying the Software or by following those steps set forth in the box at the beginning of the Agreement in the event the terms of this Agreement are not accepted by You. This Agreement will terminate automatically without notice from Encore if You fail to comply with any provision of this Agreement. Upon notice of termination, You agree to promptly destroy all of Your copies of the Software. There shall be no refund if this Agreement is terminated by Encore for Your failure to comply with the terms of this Agreement. All provisions of this Agreement as to warranties, limitation of liability, remedies and damages will survive termination. The parties agree to waive any provisions, procedures and the operation of any legislation to the extent that a court order or approval is required to terminate this Agreement.
9. LIMITED WARRANTY . Excluding the Linked Sites, Encore warrants, for Your benefit alone, for a period of 90 days from the date of commencement of this License Agreement (referred to as "Warranty Period") that the Software and the Optical Disc in which the Software is contained is free from defects in material and workmanship. This limited warranty is void if failure of the Software has resulted from accident, abuse, neglect or misapplication. If during the Warranty Period, a defect in the Software appears, You may return the physical Optical Disc containing the Software to Encore for either replacement, or, if so elected by Encore, refund of amounts paid by You under this License Agreement. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Except for the warranties set forth above, the Software, including without limitation the Optical Disc in which the Software is contained, if any, is provided to You "As Is" and Encore and its suppliers expressly disclaim all warranties and conditions, express, implied or statutory, including without limitation the implied warranties or conditions of merchantability, fitness for a particular purpose, and non-infringement. No oral or written information or advice given by Encore, its employees, distributors, dealers, or agents shall increase the scope of the above warranties or create any new warranties.
10. REMEDIES; LIMITATION OF REMEDIES AND LIABILITIES.
a. Your exclusive remedy shall be, at Encore’s sole option, (i) the refund of the amount You paid for the Software; or (ii) repair or replacement of the Software, provided that such defective Optical Disc is returned to Encore at Encore Software, Inc., Attn: Customer Service, 230 2nd ST. SE, Suite 302, Cedar Rapids, IA 52401, and proof of the date of purchase is submitted to Encore within ninety (90) days from the date of purchase. You agree that the foregoing constitutes Your sole and exclusive remedy for breach by Encore of any warranties made under this Agreement.
b. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL ENCORE OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (WHETHER BASED IN CONTRACT, TORT, OR STATUTE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF ENCORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
c. IN NO EVENT SHALL THE LIABILITY OF ENCORE EXCEED THE AMOUNT RECEIVED BY ENCORE FROM YOU UNDER THIS AGREEMENT OR ONE U.S. DOLLAR ($1.00) IF ENCORE IS NOT IN RECEIPT OF ANY MONIES FROM YOU.
d. In jurisdictions that do not allow the exclusion or limitation of liability for consequential, special or incidental damages, Encore's liability under this Agreement shall be limited to the maximum extent permitted by applicable law. Nothing in this Agreement limits Encore's liability for fraudulent misrepresentation or for death or physical injury directly caused by Encore's negligence.
e. Encore shall have the right to obtain injunctive or administrative relief in any court of competent jurisdiction or through any administrative authority having jurisdiction over a party in the event of a breach of the terms of this Agreement.
11. EXPORT CONTROL. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export or import as may be required.
12. GENERAL. This Agreement will be governed by the laws of the State of California in the United States of America, without regard to or application of conflicts of law rules or principles. The Federal and State Courts located in Los Angeles County shall have sole jurisdiction over any disputes arising hereunder and the parties hereby submit to the personal jurisdiction of such courts. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force. In the event any proceeding or lawsuit is brought by Encore or You in connection with this Agreement, the prevailing party in such proceeding or lawsuit shall be entitled to receive its costs, expert witness fees and reasonable attorney's fees, including costs and fees on appeal. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof, unless the waiver is in writing by You or an authorized agent of Encore, be taken or held to be a waiver of the provision itself. This Agreement is the complete and exclusive statement of the agreement between Encore and You which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. This Agreement shall not be modified except by a subsequently dated written amendment or exhibit signed by both parties by their duly authorized representatives. You represent that You have entered into this Agreement of Your own free will and that You are above the age of minority at the time You agree to this Agreement or that Your legal guardian consents to these terms on Your behalf.
THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
© 2015 Encore Software, Inc. All rights reserved.