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PUNCH! VIACAD END USER LICENSE AGREEMENT
END-USER LICENSE AGREEMENT (this "License Agreement") is between WD Encore Software, LLC and its Licensors (collectively "Encore/Licensor(s)"), and Consumer ("You(r)").
1. 1. THIS LICENSE AGREEMENT RELATES TO ALL COMPUTER SOFTWARE, WHETHER DOWNLOADED ELECTRONICALLY VIA ELECTRONIC SOFTWARE DELIVERY ("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. BY USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND LICENSOR CONCERNING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT INSTALL THIS SOFTWARE, AND REMOVE ALL PORTIONS OF THE SOFTWARE, IF ANY, THAT HAVE BEEN INSTALLED. IF YOU ARE THE ORIGINAL INSTALLER OF THE SOFTWARE AND DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, 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: (1) IF A PHYSICAL OPTICAL DISC WAS PURCHASED, PROVIDE TO LICENSOR: (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; OR (2) IF THE SOFTWARE WAS ELECTRONICALLY DOWNLOADED, PROVIDE TO THE ESD PROVIDER FROM WHICH YOU PURCHASED THE SOFTWARE: (A) AN E-MAIL ADDRESSED TO THE ESD PROVIDER’S WEBSITE WHICH INCLUDES YOUR FULL NAME, RETURN MAILING AND E-MAIL ADDRESS AND A REPRESENTATION THAT THE SOFTWARE WAS NOT INSTALLED. IN THE EVENT THAT A PHYSICAL OPTICAL DISC WAS PURCHASED, PLEASE SEND THE MANDATORY ITEMS TO THE FOLLOWING ADDRESS: WD ENCORE SOFTWARE, LLC 9700 West 76th Street, Suite 116, Eden Prairie, Minnesota 55344.
2. 2. License Grant. Licensor hereby grants to You, and You accept, a non-exclusive license to use the Software in machine-readable, object code form only. This license does not constitute a sale and does not authorize a sale of the Software or anything created thereby. All intellectual property (including copyright, trademark and patent) in the Software is owned or controlled by Licensor and are protected by United States laws and international treaty provisions. Licensor retains all rights not expressly granted to You. The Software may be used only on a single (1) computer owned, leased, or otherwise controlled by You; or in the event of inoperability of that computer, on a backup computer selected by You. Neither concurrent use on two (2) or more computers nor use on a local area network or other network is permitted. You agree that You will not assign, sublicense, transfer, pledge, lease, rent, or share Your rights under this License Agreement, except as otherwise provided herein, and except that You may permanently transfer all of Your rights under this License Agreement, provided that You retain no copies, transfer all of the Software (including all related media and printed materials and any upgrades), and the transferee agrees to the terms of this License Agreement. You agree that You will not reverse assemble, reverse compile, or otherwise translate the Software. The restrictions contained herein apply equally to hybrid CD-ROMS which may contain multiple versions of the Software for use on different operating systems. Regardless of the type of media You receive, You may use only the portion appropriate for Your single-user computer/workstation. In the event You fail to comply with any of the terms or conditions of this license, Your rights to use the Software will end; You shall stop using the Software, remove the Software from Your computer, and permanently erase all copies of the Software. You may not export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
3. 3. Licensor's Rights. You acknowledge and agree that the Software is the proprietary product of Licensor protected under U.S. copyright law. You further acknowledge and agree that all right, title and interest in and to the Software, including any associated intellectual property rights, are and shall remain with Licensor. This License Agreement does not convey to You an interest in or to the Software, but only a revocable limited right of use revocable in accordance with the terms of this License Agreement. You are responsible for, and must use Your best efforts to prevent the breaking of these terms by any other person.
4. 4. Scope of Rights.
a. a. You may:
i. i. Install/download the Software on Your computer;
ii. ii. Retain the Software Optical Disc, if any, for backup purposes;
iii. iii. If not copy protected, make one (1) copy of the Software on a second (2nd) Optical Disc for the purpose of backup in the event the Software Optical Disc is damaged or destroyed (retaining any copyright and other proprietary notices that appear on the original Optical Disc).
b. b. Restrictions on Use. You may not:
i. i. Use, copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor;
ii. ii. Reverse assemble, reverse compile, or otherwise translate the Software;
iii. iii. Transfer, lease, assign, or sublicense Your rights except for a transfer of the Software in its entirety;
iv. iv. Reproduce, republish or reuse any photograph or any other element or content of the Software, individually or in combination, but applicable copyright law may give You such rights. If You are uncertain about Your rights, please contact an attorney;
v. v. Remove any proprietary notices or labels in the Software;
vi. vi. Rent or lease the Software.
vii. 5. Fees and Payments. The license fees paid by You are paid in consideration of the licenses granted under this License Agreement.
viii. 6. Term. This License Agreement is effective upon Your opening/downloading of this Software, as applicable, and shall continue until terminated. You may terminate this License Agreement at any time by following those steps set forth in the second paragraph of this License Agreement which address what to do in the event that the terms hereof are not accepted by You. Licensor may terminate this License Agreement upon the breach by You of any term hereof. Upon such termination by Licensor, You agree to return to Licensor the Software and all copies and portions thereof, and/or to delete from Your computer's hard drive any and all electronic copies of the Software. There shall be no refund in the event of termination under the provisions of this paragraph.
i. 7. Limited Warranty.
b. a. If You purchased this product direct from Licensor via phone, website, or email (www.broderbund.com, www.encore.com, www.encoreusa.com, www.hoylegaming.com, www.punchsoftware.com, www.punchCAD.com, www.navarre.com, www.viva-media.com), or at a retail store, and excluding any Internet website link(s) that may be accessible from the Software, Licensor warrants, for the benefit of the initial installer alone, for a period of ninety (90) days from the date of commencement of this License Agreement (referred to as "Warranty Period") that the Software and the Software Optical Disc in which the Software is contained, if any, is substantially free from defects in material and workmanship. If during the Warranty Period, a defect in the Software appears, You may return the physical Optical Disc containing the Software to Licensor or ESD Provider, as applicable, for either replacement, or, if so elected by Licensor or ESD Provider, as applicable, refund of amounts paid by You under this License Agreement. You agree that the foregoing constitutes Your sole and exclusive remedy for breach by Licensor of any warranties made under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE OPTICAL DISC, AND THE SOFTWARE CONTAINED THEREIN, ARE LICENSED "AS IS", AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF QUALITY, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. This limited warranty is void if failure of the Software has resulted from accident, abuse, neglect or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
c. b. The Software may contain hyperlinks to Internet web sites (the "Linked Sites"). You acknowledge and agree that: (i) the Linked Sites are not under the control of Licensor; (ii) Licensor 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) Licensor 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 Licensor of any such Linked Sites. You acknowledge and agree that Licensor 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.
d. c. YOU ASSUME RESPONSIBILITY FOR ALL USE OF OR ACCESS TO LINKED SITES, AND ACCESS THE SAME AT YOUR OWN RISK. LICENSOR 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 LICENSOR, ITS AFFILIATES, ITS LICENSORS, ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY.
e. 8. Remedies. Your exclusive remedy shall be, at Licensor's sole option: (i) the refund of the amount You paid for the Software; or (ii) repair or replacement of the Software, provided that, if a physical Optical Disc containing the Software was purchased, such defective Optical Disc is returned to Licensor (at WD Encore Software, LLC ., Attention: Customer Service, 9700 West 76th Street, Suite 116, Eden Prairie, Minnesota 55344.), and regardless of the format of the originally purchased Software, proof of the date of purchase is submitted to Licensor (for physical Optical Discs) or the ESD provider (for electronic downloads) within ninety (90) days from the date of purchase.
f. 9. Limitation of Liability. THE CUMULATIVE LIABILITY OF LICENSOR TO YOU FOR ALL CLAIMS RELATING TO THE SOFTWARE AND THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE LICENSE FEE PAID TO LICENSOR FOR USE OF THE SOFTWARE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, USER DOCUMENTATION OR RELATED TECHNICAL SUPPORT, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO LOSS OF PROFITS, BUSINESS, GOODWILL, DATA, TIME OR COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR FOR ANY CLAIMS OR DEMANDS BROUGHT AGAINST YOU, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
g. 10. Miscellaneous. Licensor may cancel, change, modify, discontinue, terminate or charge a fee at any time for any reason for the online services advertised as part of this product. No change or modification of the License Agreement will be valid unless it is in writing and is signed by Licensor.
h. 11. Conditions for Use of Properties Within the Software. If You do not accept these conditions and You are the initial installer of the Software, You may promptly return the Software (including all discs and printed materials) with proof of purchase to the place it was purchased for a full refund of the amount paid or store credit (as applicable). Licensor hereby reserves the right to change these conditions of use without notice in its sole discretion or to grant any permissions consistent therewith in its sole discretion. All content contained in the Software, including but not limited to characters, designs, text, photos, clip art, images, animations, fonts, graphics, templates, sounds, videos, third party properties such as brands or logos, and projects contained in the Software (the Properties) are either owned or used under license by Licensor and are protected under trademark, copyright, and other applicable laws. Any and all unauthorized use of the Properties is strictly prohibited.
i. a. You are NOT permitted to:
i. i. Use any Property included in this product containing trademarks, brands or logos of any third party in any print or electronic media of an editorial, commercial, promotional or corporate nature;
ii. ii. Resell, sublicense or distribute Properties;
iii. iii. Sell any Property, or any item containing or incorporating any Property or copy thereof;
iv. iv. Use any Property as a logo, trademark or similar designation of Your business;
v. v. Use any individual's name, likeness and/or image in any manner which suggests the endorsement or association of any product or service.
vi. vi. Use any Property to create immoral, obscene or scandalous works.
vii. vii. Use any Property in electronic format, including online use and multimedia applications.
j. b. Each authorized use of a Property must be accompanied by the following notice: © WD Encore Software, LLC a subsidiary of WD Navarre Holdings, LLC and its licensors. All rights reserved.
k. 12. Proprietary Protection. Licensor shall retain sole and exclusive ownership of all right, title, and interest in and to the Software and all modifications and enhancements. This License Agreement does not provide You with title or ownership of the Software, but only a right of limited use.
l. 13. Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
m. 14. Severability. In the event that any terms of this License Agreement are or become or are declared to be invalid or void by any court of competent jurisdiction, such determination shall have no effect on the remaining terms of this Agreement, which shall remain in full force and effect.
n. 15. Governing Law. This License Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S.A. All actions or proceedings seeking the interpretation and/or enforcement of this Agreement shall be brought only in the State or Federal Courts located in Onondaga County in the State of New York. Licensor and Consumer hereby submit themselves to the jurisdiction of such courts.
o. 16. Dispute Resolution. Any dispute, claim or controversy concerning the parties' duties under this License Agreement shall be directed to binding arbitration administered by, and pursuant to the rules of, the American Arbitration Association ("AAA"). Such arbitration shall take place in Onondaga County in the State of New York. Each party shall bear the expense of their own attorney's fees and its prosecution of its claims/defenses. The parties shall share equally all other costs and expenses associated with such arbitration. Judgment upon any AAA award may be entered in any court having jurisdiction as outlined in Section 15 of this License Agreement.
p. 17. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent action in the event of future breaches.
q. 18. No Adequate Legal Remedy. You acknowledge that, in the event of Your breach of any of the foregoing provisions, Licensor will not have an adequate remedy in money or damages. Licensor shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Licensor's right to obtain injunctive relief shall not limit its right to seek further remedies.
r. 19. U.S. Government Restrictions. This Software is provided with restricted rights and limited rights. Use, duplication, or disclosure by the Government is subject to restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227 - 7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable.
s. 20. Privacy Statement. You acknowledge and agree that information You provide regarding Your purchase of the license under this License Agreement may be shared with the manufacturer of certain Software that is licensed hereunder. This Software manufacturer is authorized to use this information for purposes of administration of its Software license and for providing Software maintenance services.
© 2016 WD Encore Software, LLC a subsidiary of WD Navarre Holdings, LLC. All rights reserved. Punch! Software is a registered trademark of WD Encore Software, LLC, a subsidiary of WD Navarre Holdings, LLC.
END-USER LICENSE AGREEMENT (this "License Agreement") is between WD Encore Software, LLC and its Licensors (collectively "Encore/Licensor(s)"), and Consumer ("You(r)").
1. 1. THIS LICENSE AGREEMENT RELATES TO ALL COMPUTER SOFTWARE, WHETHER DOWNLOADED ELECTRONICALLY VIA ELECTRONIC SOFTWARE DELIVERY ("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. BY USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND LICENSOR CONCERNING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT INSTALL THIS SOFTWARE, AND REMOVE ALL PORTIONS OF THE SOFTWARE, IF ANY, THAT HAVE BEEN INSTALLED. IF YOU ARE THE ORIGINAL INSTALLER OF THE SOFTWARE AND DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, 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: (1) IF A PHYSICAL OPTICAL DISC WAS PURCHASED, PROVIDE TO LICENSOR: (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; OR (2) IF THE SOFTWARE WAS ELECTRONICALLY DOWNLOADED, PROVIDE TO THE ESD PROVIDER FROM WHICH YOU PURCHASED THE SOFTWARE: (A) AN E-MAIL ADDRESSED TO THE ESD PROVIDER’S WEBSITE WHICH INCLUDES YOUR FULL NAME, RETURN MAILING AND E-MAIL ADDRESS AND A REPRESENTATION THAT THE SOFTWARE WAS NOT INSTALLED. IN THE EVENT THAT A PHYSICAL OPTICAL DISC WAS PURCHASED, PLEASE SEND THE MANDATORY ITEMS TO THE FOLLOWING ADDRESS: WD ENCORE SOFTWARE, LLC 9700 West 76th Street, Suite 116, Eden Prairie, Minnesota 55344.
2. 2. License Grant. Licensor hereby grants to You, and You accept, a non-exclusive license to use the Software in machine-readable, object code form only. This license does not constitute a sale and does not authorize a sale of the Software or anything created thereby. All intellectual property (including copyright, trademark and patent) in the Software is owned or controlled by Licensor and are protected by United States laws and international treaty provisions. Licensor retains all rights not expressly granted to You. The Software may be used only on a single (1) computer owned, leased, or otherwise controlled by You; or in the event of inoperability of that computer, on a backup computer selected by You. Neither concurrent use on two (2) or more computers nor use on a local area network or other network is permitted. You agree that You will not assign, sublicense, transfer, pledge, lease, rent, or share Your rights under this License Agreement, except as otherwise provided herein, and except that You may permanently transfer all of Your rights under this License Agreement, provided that You retain no copies, transfer all of the Software (including all related media and printed materials and any upgrades), and the transferee agrees to the terms of this License Agreement. You agree that You will not reverse assemble, reverse compile, or otherwise translate the Software. The restrictions contained herein apply equally to hybrid CD-ROMS which may contain multiple versions of the Software for use on different operating systems. Regardless of the type of media You receive, You may use only the portion appropriate for Your single-user computer/workstation. In the event You fail to comply with any of the terms or conditions of this license, Your rights to use the Software will end; You shall stop using the Software, remove the Software from Your computer, and permanently erase all copies of the Software. You may not export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
3. 3. Licensor's Rights. You acknowledge and agree that the Software is the proprietary product of Licensor protected under U.S. copyright law. You further acknowledge and agree that all right, title and interest in and to the Software, including any associated intellectual property rights, are and shall remain with Licensor. This License Agreement does not convey to You an interest in or to the Software, but only a revocable limited right of use revocable in accordance with the terms of this License Agreement. You are responsible for, and must use Your best efforts to prevent the breaking of these terms by any other person.
4. 4. Scope of Rights.
a. a. You may:
i. i. Install/download the Software on Your computer;
ii. ii. Retain the Software Optical Disc, if any, for backup purposes;
iii. iii. If not copy protected, make one (1) copy of the Software on a second (2nd) Optical Disc for the purpose of backup in the event the Software Optical Disc is damaged or destroyed (retaining any copyright and other proprietary notices that appear on the original Optical Disc).
b. b. Restrictions on Use. You may not:
i. i. Use, copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor;
ii. ii. Reverse assemble, reverse compile, or otherwise translate the Software;
iii. iii. Transfer, lease, assign, or sublicense Your rights except for a transfer of the Software in its entirety;
iv. iv. Reproduce, republish or reuse any photograph or any other element or content of the Software, individually or in combination, but applicable copyright law may give You such rights. If You are uncertain about Your rights, please contact an attorney;
v. v. Remove any proprietary notices or labels in the Software;
vi. vi. Rent or lease the Software.
vii. 5. Fees and Payments. The license fees paid by You are paid in consideration of the licenses granted under this License Agreement.
viii. 6. Term. This License Agreement is effective upon Your opening/downloading of this Software, as applicable, and shall continue until terminated. You may terminate this License Agreement at any time by following those steps set forth in the second paragraph of this License Agreement which address what to do in the event that the terms hereof are not accepted by You. Licensor may terminate this License Agreement upon the breach by You of any term hereof. Upon such termination by Licensor, You agree to return to Licensor the Software and all copies and portions thereof, and/or to delete from Your computer's hard drive any and all electronic copies of the Software. There shall be no refund in the event of termination under the provisions of this paragraph.
i. 7. Limited Warranty.
b. a. If You purchased this product direct from Licensor via phone, website, or email (www.broderbund.com, www.encore.com, www.encoreusa.com, www.hoylegaming.com, www.punchsoftware.com, www.punchCAD.com, www.navarre.com, www.viva-media.com), or at a retail store, and excluding any Internet website link(s) that may be accessible from the Software, Licensor warrants, for the benefit of the initial installer alone, for a period of ninety (90) days from the date of commencement of this License Agreement (referred to as "Warranty Period") that the Software and the Software Optical Disc in which the Software is contained, if any, is substantially free from defects in material and workmanship. If during the Warranty Period, a defect in the Software appears, You may return the physical Optical Disc containing the Software to Licensor or ESD Provider, as applicable, for either replacement, or, if so elected by Licensor or ESD Provider, as applicable, refund of amounts paid by You under this License Agreement. You agree that the foregoing constitutes Your sole and exclusive remedy for breach by Licensor of any warranties made under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE OPTICAL DISC, AND THE SOFTWARE CONTAINED THEREIN, ARE LICENSED "AS IS", AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF QUALITY, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. This limited warranty is void if failure of the Software has resulted from accident, abuse, neglect or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
c. b. The Software may contain hyperlinks to Internet web sites (the "Linked Sites"). You acknowledge and agree that: (i) the Linked Sites are not under the control of Licensor; (ii) Licensor 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) Licensor 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 Licensor of any such Linked Sites. You acknowledge and agree that Licensor 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.
d. c. YOU ASSUME RESPONSIBILITY FOR ALL USE OF OR ACCESS TO LINKED SITES, AND ACCESS THE SAME AT YOUR OWN RISK. LICENSOR 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 LICENSOR, ITS AFFILIATES, ITS LICENSORS, ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY.
e. 8. Remedies. Your exclusive remedy shall be, at Licensor's sole option: (i) the refund of the amount You paid for the Software; or (ii) repair or replacement of the Software, provided that, if a physical Optical Disc containing the Software was purchased, such defective Optical Disc is returned to Licensor (at WD Encore Software, LLC ., Attention: Customer Service, 9700 West 76th Street, Suite 116, Eden Prairie, Minnesota 55344.), and regardless of the format of the originally purchased Software, proof of the date of purchase is submitted to Licensor (for physical Optical Discs) or the ESD provider (for electronic downloads) within ninety (90) days from the date of purchase.
f. 9. Limitation of Liability. THE CUMULATIVE LIABILITY OF LICENSOR TO YOU FOR ALL CLAIMS RELATING TO THE SOFTWARE AND THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE LICENSE FEE PAID TO LICENSOR FOR USE OF THE SOFTWARE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, USER DOCUMENTATION OR RELATED TECHNICAL SUPPORT, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO LOSS OF PROFITS, BUSINESS, GOODWILL, DATA, TIME OR COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR FOR ANY CLAIMS OR DEMANDS BROUGHT AGAINST YOU, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
g. 10. Miscellaneous. Licensor may cancel, change, modify, discontinue, terminate or charge a fee at any time for any reason for the online services advertised as part of this product. No change or modification of the License Agreement will be valid unless it is in writing and is signed by Licensor.
h. 11. Conditions for Use of Properties Within the Software. If You do not accept these conditions and You are the initial installer of the Software, You may promptly return the Software (including all discs and printed materials) with proof of purchase to the place it was purchased for a full refund of the amount paid or store credit (as applicable). Licensor hereby reserves the right to change these conditions of use without notice in its sole discretion or to grant any permissions consistent therewith in its sole discretion. All content contained in the Software, including but not limited to characters, designs, text, photos, clip art, images, animations, fonts, graphics, templates, sounds, videos, third party properties such as brands or logos, and projects contained in the Software (the Properties) are either owned or used under license by Licensor and are protected under trademark, copyright, and other applicable laws. Any and all unauthorized use of the Properties is strictly prohibited.
i. a. You are NOT permitted to:
i. i. Use any Property included in this product containing trademarks, brands or logos of any third party in any print or electronic media of an editorial, commercial, promotional or corporate nature;
ii. ii. Resell, sublicense or distribute Properties;
iii. iii. Sell any Property, or any item containing or incorporating any Property or copy thereof;
iv. iv. Use any Property as a logo, trademark or similar designation of Your business;
v. v. Use any individual's name, likeness and/or image in any manner which suggests the endorsement or association of any product or service.
vi. vi. Use any Property to create immoral, obscene or scandalous works.
vii. vii. Use any Property in electronic format, including online use and multimedia applications.
j. b. Each authorized use of a Property must be accompanied by the following notice: © WD Encore Software, LLC a subsidiary of WD Navarre Holdings, LLC and its licensors. All rights reserved.
k. 12. Proprietary Protection. Licensor shall retain sole and exclusive ownership of all right, title, and interest in and to the Software and all modifications and enhancements. This License Agreement does not provide You with title or ownership of the Software, but only a right of limited use.
l. 13. Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
m. 14. Severability. In the event that any terms of this License Agreement are or become or are declared to be invalid or void by any court of competent jurisdiction, such determination shall have no effect on the remaining terms of this Agreement, which shall remain in full force and effect.
n. 15. Governing Law. This License Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S.A. All actions or proceedings seeking the interpretation and/or enforcement of this Agreement shall be brought only in the State or Federal Courts located in Onondaga County in the State of New York. Licensor and Consumer hereby submit themselves to the jurisdiction of such courts.
o. 16. Dispute Resolution. Any dispute, claim or controversy concerning the parties' duties under this License Agreement shall be directed to binding arbitration administered by, and pursuant to the rules of, the American Arbitration Association ("AAA"). Such arbitration shall take place in Onondaga County in the State of New York. Each party shall bear the expense of their own attorney's fees and its prosecution of its claims/defenses. The parties shall share equally all other costs and expenses associated with such arbitration. Judgment upon any AAA award may be entered in any court having jurisdiction as outlined in Section 15 of this License Agreement.
p. 17. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent action in the event of future breaches.
q. 18. No Adequate Legal Remedy. You acknowledge that, in the event of Your breach of any of the foregoing provisions, Licensor will not have an adequate remedy in money or damages. Licensor shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Licensor's right to obtain injunctive relief shall not limit its right to seek further remedies.
r. 19. U.S. Government Restrictions. This Software is provided with restricted rights and limited rights. Use, duplication, or disclosure by the Government is subject to restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227 - 7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable.
s. 20. Privacy Statement. You acknowledge and agree that information You provide regarding Your purchase of the license under this License Agreement may be shared with the manufacturer of certain Software that is licensed hereunder. This Software manufacturer is authorized to use this information for purposes of administration of its Software license and for providing Software maintenance services.
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