Softricity, LLC - PDMLynx Client License Agreement

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE PDMLynx SOFTWARE (THE 'PRODUCT'), THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT ('LICENSEE') IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL OR USE THE PRODUCT.

1. LICENSE GRANT. Softricity, LLC ('Softricity') grants Licensee a non-exclusive and non-transferable license to reproduce and use for personal or internal business purposes the executable code version of the Product, provided any copy must contain all of the original proprietary notices. This license does not entitle Licensee to receive from Softricity hard-copy documentation, technical support, telephone assistance, or enhancements or updates to the Product. Licensee may not redistribute the Product without prior written permission from Softricity to do so.

2. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, Licensee may not: (i) modify or create any derivative works of the Product or documentation, including translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction); (iii) modify, network, redistribute, encumber, sell, rent, lease, loan, sublicense, or otherwise transfer rights to the Product in whole or in part; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (v) publish any results of benchmark tests run on the Product to a third party without Softricity's prior written consent. Plug-ins and product components provided with or as part of the Product may be used only with the Product and not on a standalone basis or with any other product. Product API's may be used only to develop code to work with the Product. THE PRODUCT IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

3. TERMINATION. Without prejudice to any other rights, Softricity may terminate this Agreement if Licensee breaches any of its terms or conditions. Upon termination, Licensee shall destroy and cease the use of all copies of the Product. Further, upon termination, Licensee shall deliver to Softricity any and all documents/materials which were prepared or created by Licensee in violation of this agreement. This License is subject to termination by Softricity at any time by providing public notice of such termination on the website of PDMLynx.

4. BANDWIDTH LOAD. The Product includes features that may access the upstream bandwidth capacity of the Licensee's connection to the Internet and other local or wide area networks during Product use and in conjunction with receiving a live media stream. Licensee acknowledges that this can cause Licensee's computer to act in a similar fashion as a server and will consequently utilize Licensee's harddrive, a portion of RAM and a portion of the upstream bandwith of Licensee's computer. Licensee consents to such use in connection with Licensee's use of the Product, and Licensee warrants that such use of Licensee's computer and the functioning as a server in a peer-to-peer network does not violate any agreement to which Licensee is a party and Licensee is authorized to engage in such activity.

5. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Product shall remain solely in Softricity and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Softricity's or its suppliers' ownership of or rights with respect to the Product. The Product is protected by copyright and other intellectual property laws and by international treaties. Licensee agrees, at its expense, to defend and hold Softricity and its affiliates harmless from any and all costs, damages and reasonable attorneys' fees resulting from any claim that Licensee's use of the Product has injured or otherwise violated any right of any third party or violates any law.

6. DISCLAIMER OF WARRANTY. The Product may contain inaccuracies or errors that could cause failures or loss of data. THE PRODUCT IS PROVIDED FREE OF CHARGE AND ON AN 'AS IS' BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIESOF OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT IT IS FREE OF DEFECTS OR THAT THE PRODUCT IS NON-INFRINGING OF THIRD PARTY RIGHTS. Softricity DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT, THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Softricity OR A Softricity AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE, AND NOT Softricity OR ITS SUPPLIERS OR RESELLERS, ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER AND PURSUANT TO THE TERMS OF THIS DISCLAIMER. The Product may automatically reference and link to sites and information located worldwide throughout the Internet. Because Softricity has no control over such sites and information, Softricity makes no guarantees as to such sites and information, including: (a) the accuracy, currency, content, or quality of any such sites and information, or (b) whether a Softricity search completed through the Product may locate unintended or objectionable content. Because some of the content on the Internet consists of material that is adult-oriented or otherwise objectionable to some people or viewers under the age of 18, the results of any search or entering of a particular URL using the Product may automatically and unintentionally generate links or references to objectionable material. By using the Product, you acknowledge that Softricity makes no representations or warranties with regard to the appropriateness of the content viewed through the Product, whether on a pre-installed channel button or as a result of your search. Softricity does not guarantee the sequence, accuracy, completeness or timeliness of the content played through the Product. Softricity, its officers, affiliates and subsidiaries shall not, directly or indirectly, be liable, in any way, to you or any other person for the content you receive using the Product or for any inaccuracies, errors in or omissions from the content.

7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Softricity OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF DATA, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. In any case, Softricity's entire liability under any provision of this agreement shall not exceed in the aggregate the sum of the fees Licensee paid for this license (if any) and fees for support of the Product received by Softricity under a separate support agreement (if any), with the exception of death or personal injury caused by the negligence of Softricity to the extent applicable law prohibits the limitation of damages in such cases. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this exclusion and limitation may not be applicable. Softricity is not responsible for any liability, loss, damage or injury arising out of content provided by any broadcaster, Licensee or a third party that is accessed through the Product and/or any material linked through such content.

8. EXPORT CONTROL. Licensee agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Product or any direct or derivative product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Product from the U.S.

9. HIGH RISK ACTIVITIES. The Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Product could lead directly to death, personal injury, or severe physical or environmental damage ('High Risk Activities'). Accordingly, Softricity AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. LICENSEE AGREES THAT Softricity AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE PRODUCT IN SUCH APPLICATIONS.

10. U.S. GOVERNMENT END USERS. The Product is a 'commercial item,' as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of 'commercial computer software' and 'commercial computer software documentation,' as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Product with only those rights set forth herein.

11. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. (b) This Agreement may be amended only by a writing signed by both parties. (c) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of Washington, U.S.A., excluding its conflict of law provisions. (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. (e) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (f) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (g) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (h) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Licensee's assets to another entity. (i) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (j) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (k) The relationship between Softricity and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Softricity in any way. (l) Softricity may change the terms of this Agreement from time to time. (m) The parties hereto confirm that they have requested that this License and all related documents be drafted in English. By continuing to use the Product beyond a period of 30 days after notice of such change has been provided on a public website of PDMLynx or its affiliate for the first time, Licensee signifies its consent to the revised terms.