End User License Agreement: R5 Video Player Software
IMPORTANT! THIS IS THE LICENSE AGREEMENT THAT YOU ARE REQUIRED TO ACCEPT BEFORE USING MARCH NETWORKS R5 VIDEO PLAYER. CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT BEFORE PROCEEDING WITH THE DOWNLOADING AND/OR INSTALLATION OF THIS R5 VIDEO PLAYER. YOU ARE NOT PERMITTED TO DOWNLOAD AND/OR INSTALL THIS R5 VIDEO PLAYER UNTIL YOU HAVE AGREED TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.
SECTION 1.0 – GRANT OF LICENSE
1.1 Subject to the terms and conditions of this End User License Agreement (the “Agreement”), March Networks grants to End User and End User accepts a non-exclusive, non-transferable limited use license to use the March Networks R5 Video Player software in object code form, owned or distributed by March Networks (the collectively “Licensed Software”) and any accompanying documentation for use with the Licensed Software (the “Documentation”) provided by March Networks (collectively, the “Software”) for End User’s own internal use, solely in conjunction with the designated equipment or networks as set out in the Documentation.
1.2 End User is permitted to install and use the Software on computers, for the purpose of accessing to media files exported from a March Networks system.
1.3 Parts of the Software may contain third party software which requires notices and/or additional terms and conditions. Those terms, and any Software authorship attribution and like notices that March Networks is required to provide to End User, are set out in the Third Party License Terms published in the software package. By accepting this Agreement, End User is also accepting the additional terms and conditions, if any, set forth therein. In addition to any terms and conditions identified in the Third Party License Terms, the disclaimer of warranty and limitation of liability provisions in Section 4.0 and 5.0 of this Agreement shall apply to all Software in this distribution.
1.4 THIS PRODUCT IS LICENSED UNDER THE MPEG-4 VISUAL PATENT PORTFOLIO LICENSE FOR THE PERSONAL AND NONCOMMERCIAL USE OF A CONSUMER TO (i) ENCODIING VIDEO IN COMPLIANCE WITH THE MPEG-4 VISUAL STANDARD (“MPEG-4 VIDEO”) AND/OR (ii) DECODING MPEG-4 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED INA PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED BY MPEG LA TO PROVIDE MPEG-4 VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION INCLUDING THAT RELATING TO PROMOTIONAL, INTERNAL ANC COMMERCIAL USES MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE HTTP://WWW.MPEGLA.COM
SECTION 2.0 – CONFIDENTIALITY, PROTECTION AND SECURITY OF SOFTWARE PRODUCTS
2.1 End User acknowledges and agrees that the Software is proprietary and confidential to March Networks and/or its third party suppliers, and agrees to keep such information confidential.
2.2 Subject to the rights expressly granted to the End User in this Agreement, all rights, title and interest to the Software and all related releases thereof, including all copyright and other intellectual property rights in the foregoing, are and shall at all times remain the sole and exclusive property of March Networks or its third party suppliers. End User shall not copy, in whole or in part, any of the Software or any related release(s) thereof, nor shall End User translate, modify, enhance, create derivative works, reverse engineer, de-compile, encumber, sublicense, lend, rent, lease, assign or transfer, or otherwise use, the Software or any related releases thereof, except as specifically authorized under this Agreement. All appropriate copyright and other proprietary notices and legends shall be placed on all Software and related releases supplied by March Networks, and End User shall maintain and reproduce those notices on any full or partial copies made by it.
SECTION 3.0 – TERM AND TERMINATION
3.1 Unless otherwise agreed to in writing, this Agreement shall become effective for the Software upon use of the Software. By using the Software End User accepts the Software and agrees to the terms of this Agreement.
3.2 March Networks may terminate this Agreement immediately if: (a) End User becomes bankrupt, makes an assignment for the benefit of its creditors, or if its assets vest or become subject to the rights of any trustee, receiver or other administrator; (b) bankruptcy, reorganization or insolvency proceedings are instituted against End User and not dismissed within fifteen (15) days; or (c) End User breaches a material provision of or is in default of its obligations under this Agreement and the breach or default is incapable of cure or, if capable of cure, the breach or default is not rectified within fifteen (15) days of receipt of written notice of the breach from March Networks.
3.3 Termination of End User’s license will automatically result in termination of this Agreement.
3.4 Upon termination of this Agreement, End User shall immediately return or destroy all copies of the Software and all related releases. In event of destruction of the foregoing, End User shall certify such destruction to March Networks, in writing. All obligations of End User arising prior to termination and those obligations relating to confidentiality and non-use, shall survive termination of this Agreement.
3.5 The provisions of Sections 2.0 (Confidentiality, Protection and Security of Software), 4.0 (Warranties), and 5.0 (Limitation of Liability) of Part I and Part III shall survive termination of this Agreement.
SECTION 4.0 – WARRANTIES
4.1 THIS SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
4.2 MARCH NETWORKS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OR REPRESENTATIONS OF WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, NON-INFRINGEMENT, THOSE ARISING FROM STATUTE OR TRADE CUSTOM, OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
SECTION 5.0 – LIMITATION OF LIABILITY
5. 1 IN NO EVENT WHATSOEVER, REGARDLESS OF THE FORM OR CAUSE OF ACTION WHETHER IN CONTRACT OR TORT OR THE NUMBER OF CLAIMS, AND WHETHER IN RESPECT OF A BREACH OR DEFAULT IN THE NATURE OF A BREACH OF CONDITION OR FUNDAMENTAL TERM OR A FUNDAMENTAL BREACH OR AS A RESULT OF NEGLIGENCE, SHALL MARCH NETWORKS, ITS EMPLOYEES’, DIRECTORS’, OFFICERS’ AND AGENTS’ TOTAL COLLECTIVE LIABILITY TO END USER FOR ANY CLAIM EXCEED ONE HUNDRED DOLLARS (US$100.00).
5.2 MARCH NETWORKS, ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS SHALL NOT BE LIABLE IN ANY WAY WHATSOEVER, WHETHER AS A RESULT OF A CLAIM OR ACTION IN CONTRACT OR TORT OR OTHERWISE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OR LOST BUSINESS REVENUE, LOST BUSINESS, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT MARCH NETWORKS, ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 6.0 – GENERAL
6.1 If the End User is the government of the United States of America, the following provision shall apply: The Software is provided to the United States government as commercial computer software and/or computer software documentation under licenses customarily provided to the public to the extent such licenses are consistent with federal law and otherwise satisfy the government’s needs. Accordingly the government shall have only those rights specified in the license set forth herein as per FAR 12.212 (a). If said license fails to meet the government’s needs or is inconsistent in any respect with federal law, the government agrees to return the Software, unused, to March Networks.
6.2 End User understands and agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the export laws, restrictions or regulations of Canada, the United States or the European Community (collectively the “Export Laws”). In addition, if the Software is identified as an export controlled item under the Export Laws, End User represents and warrants that it is not a citizen of, or located within, an embargoed or otherwise restricted nation (including without limitation Belarus, Cuba Iran, Libya, Myanmar, North Korea, Syria, Sudan) and that End User is not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if End User fails to comply with the terms of this agreement.
6.3 This Agreement constitutes the entire agreement between March Networks and End User and supercedes all prior oral and written communications. All amendments shall be in writing and signed by an authorized representative of both parties. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective representatives, successors and permitted assigns. The End User shall not assign this Agreement or any interest herein, or any rights accruing under this Agreement, without the prior written consent of March Networks.
6.4 If any provision of this Agreement is held to be invalid, illegal or unenforceable, it shall be severed and the remaining provisions shall continue in full force and effect.
6.5 No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. The waiver by either party of any right hereunder, or of the failure to perform or of a breach by the other party, shall not be deemed to be a waiver of any other right hereunder or of any other breach or failure by such party, whether of a similar nature or otherwise.
6.6 For End Users resident in the United States, March Networks is “March Networks, Inc.” and this Agreement shall be governed by the domestic laws of the State of Delaware, USA (excluding its conflicts of laws provisions) and the courts of that State shall have exclusive jurisdiction over all matters arising hereunder. For End Users resident in European Union, March Networks is “March Networks S.r.l.” and this Agreement shall be governed by the domestic laws of Italy (excluding its conflicts of laws provisions) and the courts of Italy shall have exclusive jurisdiction over all matters arising hereunder. For End Users resident in Canada, Latin America (excluding Mexico), Asia, Africa or the Middle East, March Networks is “March Networks Corporation” and this Agreement shall be governed by the domestic laws of the Province of Ontario, Canada (excluding its conflicts of laws provisions), and the courts of that Province shall have exclusive jurisdiction over all matters arising hereunder. For End Users resident in Mexico, March Networks is “March Networks de Mexico, S.A. de C.V and this Agreement shall be interpreted and construed in accordance with the laws of Mexico and both parties submit to the jurisdiction and to the court of competent jurisdiction located in the Federal District. For End Users resident in Australia and New Zealand March Networks is “March Networks (Australia) Pty Limited” and this Agreement will be governed in accordance with the laws of the State of New South Wales, Australia (excluding its conflicts of laws provisions), and the courts of that State shall have exclusive jurisdiction over all matters arising hereunder. The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention, 1980).