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END USER LICENSE AGREEMENT
FOR CAFFEINE CLIENT SOFTWARE
THIS END USER LICENSE AGREEMENT FOR CAFFEINE CLIENT SOFTWARE (“EULA”) IS MADE BETWEEN YOU (“Licensee”) AND CAFFEINE INC. (“Caffeine”) AND GOVERNS LICENSEE’S USE OF CAFFEINE’S SOFTWARE (DEFINED IN SECTION 1 BELOW) THAT IS DOWNLOADABLE FROM CAFFEINE’S WEBSITE LOCATED AT http://www.caffeine.tv (“Service”) OR FROM CAFFEINE’S AUTHORIZED DISTRIBUTORS. BY ACCEPTING THIS EULA DURING THE INSTALLATION PROCESS, LICENSEE REPRESENTS AND WARRANTS THAT (A) LICENSEE HAS READ AND UNDERSTANDS THIS EULA, AND AGREES TO BE BOUND LEGALLY BY THIS EULA; (B) LICENSEE IS EITHER AT LEAST 18 YEARS OF AGE OR HAS THE CONSENT OF A PARENT OR LEGAL GUARDIAN WHO IS AT LEAST 18 YEARS OF AGE TO USE THE SOFTWARE; AND (C) IF LICENSEE IS ACCESSING THE SOFTWARE ON BEHALF OF AN ENTITY, LICENSEE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS EULA. IF LICENSEE IS ACCESSING THE SOFTWARE ON BEHALF OF AN ENTITY, THEN ALL REFERENCES TO “LICENSEE” IN THIS EULA WILL REFER TO THAT ENTITY (EXCEPT IN THIS SENTENCE AND THE PRECEDING SENTENCE). IF LICENSEE DOES NOT AGREE WITH THIS EULA, THEN LICENSEE MUST REJECT THIS EULA BY STOPPING THE INSTALLATION PROCESS.
1) License. Subject to Licensee’s compliance with this EULA, Caffeine hereby grants to Licensee during the Term (defined in Section 5 below) a non-exclusive, non-transferable, non-sublicensable, worldwide and royalty-free license to download, install and run the client software in object form only that Caffeine makes available to Licensee for download on its Service and any related documentation (collectively, the “Software”).
2) Restrictions. Caffeine reserves all rights that are not expressly granted to Licensee in Section 1. Without limiting the preceding sentence, Licensee will not (a) copy, modify, translate, or create derivative works of the Software; (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software, except to the extent such restriction is impermissible under applicable law; (c) lend, rent, lease, offer for sale, sell or otherwise distribute the Software to any third party; (d) attempt to circumvent any license, timing or use restrictions that are built into the Software; or (e) use the Software in violation of this EULA, any applicable laws, rules or regulations or any third party rights.
3) Ownership. As between the parties, (a) Caffeine solely owns all right, title and interest (including all intellectual property rights) in and to the Software subject only to the limited license granted in Section 1; and (b) Licensee will retain ownership of all comments, suggestions, ideas or other information or materials regarding Licensee’s use of and/or experience with the Software that Licensee may provide to Caffeine (collectively, “Feedback”) subject to the following sentence. Licensee hereby grants to Caffeine a perpetual, irrevocable, transferable, sublicensable, worldwide and royalty-free license to reproduce, create derivative works from, distribute, publicly display and perform and otherwise use and exploit the Feedback without restriction and without any obligation to provide attribution or compensation to Licensee.
4) Consideration. Caffeine provides Licensee with free access to the Software during the Term. In exchange for this free access, Caffeine may generate revenues, increase goodwill or otherwise increase the value of its business in connection with Licensee’s use of the Software and the Caffeine products and services to which it relates. Licensee hereby acknowledges that Licensee will have no right under this EULA to share in any such revenues, goodwill or value whatsoever, although Caffeine may choose to provide certain monetization opportunities as may be set forth in the Terms of Service.
5) Term and Termination. This EULA will commence on the date accepted by Licensee and continue until terminated by either party (“Term”). Either party may terminate this EULA for any or no reason upon written notice to the other party. Upon termination, the license granted to Licensee in Section 1 will immediately terminate, and Licensee must permanently delete all copies of the Software within Licensee’s possession or control. Sections 2-10 will survive any termination of this EULA.
6) Warranty Disclaimers and Limitations on Liability. CAFFEINE AND ITS LICENSORS HEREBY WAIVE ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, (a) CAFFEINE WILL NOT BE LIABLE TO LICENSEE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT THIS EULA; AND (b) IN NO EVENT WILL CAFFEINE’S TOTAL LIABILITY ARISING UNDER THIS EULA EXCEED $100, EXCEPT AS OTHERWISE SET FORTH IN SECTIONS 8(d)(B) and 8(d)(C).
7) Indemnification. Licensee will indemnify, defend and hold Caffeine harmless from any claim, action, suit or proceeding arising out of or related to Licensee’s breach of this EULA or Licensee’s use of the Software.
8) Dispute Resolution.
a. General. In the interest of resolving disputes between Licensee and Caffeine in the most expedient and cost effective manner, Licensee and Caffeine agree that any dispute arising out of or in any way related to this EULA or Licensee’s use of the Software will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or Licensee’s use of the Software, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. LICENSEE UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS EULA, LICENSEE AND CAFFEINE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 8(a) above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between Licensee and Caffeine will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at http://www.adr.org, by calling the AAA at 1-800-778-7879. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Caffeine’s address for Notice is: 570 El Camino Real #150-408, Redwood City, CA 94063, Attn: Chief Executive Officer and Legal. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, Licensee or Caffeine may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Licensee or Caffeine must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in Licensee’s favor with a monetary award that exceeds the last written settlement amount offered by Caffeine prior to selection of an arbitrator, Caffeine will pay Licensee the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Caffeine in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
e. Fees. If Licensee commences arbitration in accordance with this EULA, Caffeine will reimburse Licensee for Licensee’s payment of the filing fee, unless Licensee’s claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $15,000 or less, Licensee may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance-based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Licensee’s billing address. If the arbitrator finds that either the substance of Licensee’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Licensee agrees to reimburse Caffeine for all monies previously disbursed by it that are otherwise Licensee’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f. No Class Actions. LICENSEE AND CAFFEINE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Licensee and Caffeine agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if Caffeine makes any future change to this arbitration provision, other than a change to Caffeine’s address for Notice, Licensee may reject the change by sending Caffeine written notice within 30 days of the change to Caffeine’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes Licensee rejected, will continue to govern any disputes between Licensee and Caffeine.
h. Enforceability. If Section 8(f) above is found to be unenforceable or if the entirety of this Section 8 is found to be unenforceable, then the entirety of this Section 8 will be null and void.
9) Changes to this EULA. Licensee understands and agrees that Caffeine may change this EULA at any time without prior notice. Caffeine will endeavor to provide Licensee with prior notice of any material changes to this EULA. Licensee may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting on the Service, and Licensee’s use of the Software after such time will constitute Licensee’s acceptance of the revised EULA. If any change to this EULA is not acceptable to Licensee, then Licensee’s sole remedy is to stop using the Software. Notwithstanding the preceding sentences of this Section 9, no revisions to this EULA will apply to any dispute between Licensee and Caffeine that arose prior to the effective date of those revisions.
10) Miscellaneous. Licensee may not assign this EULA without Caffeine’s prior written consent, and Caffeine may assign this EULA freely in its sole discretion. For the purposes of this EULA, an assignment includes, without limitation, any merger, acquisition of stock or assets, change of control or similar transaction. This EULA constitutes the entire agreement between the parties with respect to Licensee’s use of the Software, and supersedes all prior or contemporaneous understandings or agreements, whether oral or written, express or implied. This EULA will be governed solely by the laws of the State of California, without regard to its conflicts of laws principles. Any waiver of a right arising under this EULA must be made in writing and signed by the party making the waiver. Except as permitted under Section 9 above, this EULA may only be amended in a writing signed by the parties. If any provision of this EULA is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this EULA will remain in full effect. Each party will send all notices required or permitted under this EULA to the following addresses: (i) in the case of Caffeine: copyright@caffeine.tv; and (ii) in the case of Licensee, to the electronic mail address that Caffeine has on record for Licensee. Notices will be deemed delivered on the date of confirmed transmission by the sender. If Caffeine discovers that the electronic mail address that Caffeine has on record for Licensee is outdated or otherwise inactive, then this EULA automatically will terminate.
FOR CAFFEINE CLIENT SOFTWARE
THIS END USER LICENSE AGREEMENT FOR CAFFEINE CLIENT SOFTWARE (“EULA”) IS MADE BETWEEN YOU (“Licensee”) AND CAFFEINE INC. (“Caffeine”) AND GOVERNS LICENSEE’S USE OF CAFFEINE’S SOFTWARE (DEFINED IN SECTION 1 BELOW) THAT IS DOWNLOADABLE FROM CAFFEINE’S WEBSITE LOCATED AT http://www.caffeine.tv (“Service”) OR FROM CAFFEINE’S AUTHORIZED DISTRIBUTORS. BY ACCEPTING THIS EULA DURING THE INSTALLATION PROCESS, LICENSEE REPRESENTS AND WARRANTS THAT (A) LICENSEE HAS READ AND UNDERSTANDS THIS EULA, AND AGREES TO BE BOUND LEGALLY BY THIS EULA; (B) LICENSEE IS EITHER AT LEAST 18 YEARS OF AGE OR HAS THE CONSENT OF A PARENT OR LEGAL GUARDIAN WHO IS AT LEAST 18 YEARS OF AGE TO USE THE SOFTWARE; AND (C) IF LICENSEE IS ACCESSING THE SOFTWARE ON BEHALF OF AN ENTITY, LICENSEE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS EULA. IF LICENSEE IS ACCESSING THE SOFTWARE ON BEHALF OF AN ENTITY, THEN ALL REFERENCES TO “LICENSEE” IN THIS EULA WILL REFER TO THAT ENTITY (EXCEPT IN THIS SENTENCE AND THE PRECEDING SENTENCE). IF LICENSEE DOES NOT AGREE WITH THIS EULA, THEN LICENSEE MUST REJECT THIS EULA BY STOPPING THE INSTALLATION PROCESS.
1) License. Subject to Licensee’s compliance with this EULA, Caffeine hereby grants to Licensee during the Term (defined in Section 5 below) a non-exclusive, non-transferable, non-sublicensable, worldwide and royalty-free license to download, install and run the client software in object form only that Caffeine makes available to Licensee for download on its Service and any related documentation (collectively, the “Software”).
2) Restrictions. Caffeine reserves all rights that are not expressly granted to Licensee in Section 1. Without limiting the preceding sentence, Licensee will not (a) copy, modify, translate, or create derivative works of the Software; (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software, except to the extent such restriction is impermissible under applicable law; (c) lend, rent, lease, offer for sale, sell or otherwise distribute the Software to any third party; (d) attempt to circumvent any license, timing or use restrictions that are built into the Software; or (e) use the Software in violation of this EULA, any applicable laws, rules or regulations or any third party rights.
3) Ownership. As between the parties, (a) Caffeine solely owns all right, title and interest (including all intellectual property rights) in and to the Software subject only to the limited license granted in Section 1; and (b) Licensee will retain ownership of all comments, suggestions, ideas or other information or materials regarding Licensee’s use of and/or experience with the Software that Licensee may provide to Caffeine (collectively, “Feedback”) subject to the following sentence. Licensee hereby grants to Caffeine a perpetual, irrevocable, transferable, sublicensable, worldwide and royalty-free license to reproduce, create derivative works from, distribute, publicly display and perform and otherwise use and exploit the Feedback without restriction and without any obligation to provide attribution or compensation to Licensee.
4) Consideration. Caffeine provides Licensee with free access to the Software during the Term. In exchange for this free access, Caffeine may generate revenues, increase goodwill or otherwise increase the value of its business in connection with Licensee’s use of the Software and the Caffeine products and services to which it relates. Licensee hereby acknowledges that Licensee will have no right under this EULA to share in any such revenues, goodwill or value whatsoever, although Caffeine may choose to provide certain monetization opportunities as may be set forth in the Terms of Service.
5) Term and Termination. This EULA will commence on the date accepted by Licensee and continue until terminated by either party (“Term”). Either party may terminate this EULA for any or no reason upon written notice to the other party. Upon termination, the license granted to Licensee in Section 1 will immediately terminate, and Licensee must permanently delete all copies of the Software within Licensee’s possession or control. Sections 2-10 will survive any termination of this EULA.
6) Warranty Disclaimers and Limitations on Liability. CAFFEINE AND ITS LICENSORS HEREBY WAIVE ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, (a) CAFFEINE WILL NOT BE LIABLE TO LICENSEE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT THIS EULA; AND (b) IN NO EVENT WILL CAFFEINE’S TOTAL LIABILITY ARISING UNDER THIS EULA EXCEED $100, EXCEPT AS OTHERWISE SET FORTH IN SECTIONS 8(d)(B) and 8(d)(C).
7) Indemnification. Licensee will indemnify, defend and hold Caffeine harmless from any claim, action, suit or proceeding arising out of or related to Licensee’s breach of this EULA or Licensee’s use of the Software.
8) Dispute Resolution.
a. General. In the interest of resolving disputes between Licensee and Caffeine in the most expedient and cost effective manner, Licensee and Caffeine agree that any dispute arising out of or in any way related to this EULA or Licensee’s use of the Software will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or Licensee’s use of the Software, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. LICENSEE UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS EULA, LICENSEE AND CAFFEINE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 8(a) above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between Licensee and Caffeine will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at http://www.adr.org, by calling the AAA at 1-800-778-7879. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Caffeine’s address for Notice is: 570 El Camino Real #150-408, Redwood City, CA 94063, Attn: Chief Executive Officer and Legal. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, Licensee or Caffeine may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Licensee or Caffeine must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in Licensee’s favor with a monetary award that exceeds the last written settlement amount offered by Caffeine prior to selection of an arbitrator, Caffeine will pay Licensee the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Caffeine in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
e. Fees. If Licensee commences arbitration in accordance with this EULA, Caffeine will reimburse Licensee for Licensee’s payment of the filing fee, unless Licensee’s claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $15,000 or less, Licensee may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance-based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Licensee’s billing address. If the arbitrator finds that either the substance of Licensee’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Licensee agrees to reimburse Caffeine for all monies previously disbursed by it that are otherwise Licensee’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f. No Class Actions. LICENSEE AND CAFFEINE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Licensee and Caffeine agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if Caffeine makes any future change to this arbitration provision, other than a change to Caffeine’s address for Notice, Licensee may reject the change by sending Caffeine written notice within 30 days of the change to Caffeine’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes Licensee rejected, will continue to govern any disputes between Licensee and Caffeine.
h. Enforceability. If Section 8(f) above is found to be unenforceable or if the entirety of this Section 8 is found to be unenforceable, then the entirety of this Section 8 will be null and void.
9) Changes to this EULA. Licensee understands and agrees that Caffeine may change this EULA at any time without prior notice. Caffeine will endeavor to provide Licensee with prior notice of any material changes to this EULA. Licensee may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting on the Service, and Licensee’s use of the Software after such time will constitute Licensee’s acceptance of the revised EULA. If any change to this EULA is not acceptable to Licensee, then Licensee’s sole remedy is to stop using the Software. Notwithstanding the preceding sentences of this Section 9, no revisions to this EULA will apply to any dispute between Licensee and Caffeine that arose prior to the effective date of those revisions.
10) Miscellaneous. Licensee may not assign this EULA without Caffeine’s prior written consent, and Caffeine may assign this EULA freely in its sole discretion. For the purposes of this EULA, an assignment includes, without limitation, any merger, acquisition of stock or assets, change of control or similar transaction. This EULA constitutes the entire agreement between the parties with respect to Licensee’s use of the Software, and supersedes all prior or contemporaneous understandings or agreements, whether oral or written, express or implied. This EULA will be governed solely by the laws of the State of California, without regard to its conflicts of laws principles. Any waiver of a right arising under this EULA must be made in writing and signed by the party making the waiver. Except as permitted under Section 9 above, this EULA may only be amended in a writing signed by the parties. If any provision of this EULA is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this EULA will remain in full effect. Each party will send all notices required or permitted under this EULA to the following addresses: (i) in the case of Caffeine: copyright@caffeine.tv; and (ii) in the case of Licensee, to the electronic mail address that Caffeine has on record for Licensee. Notices will be deemed delivered on the date of confirmed transmission by the sender. If Caffeine discovers that the electronic mail address that Caffeine has on record for Licensee is outdated or otherwise inactive, then this EULA automatically will terminate.