End-User License Agreement for Entertainment Partners Software
PACKAGE SOFTWARE USERS:
IMPORTANT – READ CAREFULLY BEFORE OPENING THIS PACKAGE: OPENING THIS PACKAGE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND IS A REPRESENTATION BY YOU THAT YOU HAVE THE AUTHORITY TO ACCEPT THEM. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD PROMPTLY RETURN THE UNOPENED PACKAGE, AND THE MONEY YOU PAID, IF ANY, WILL BE REFUNDED.
INTERNET DOWNLOAD USERS:
IMPORTANT – READ CAREFULLY BEFORE INSTALLING THIS SOFTWARE: DOWNLOADING THIS SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND IS A REPRESENTATION BY YOU THAT YOU HAVE THE AUTHORITY TO ACCEPT THEM. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD NOT DOWNLOAD OR INSTALL THIS SOFTWARE.
THIS AGREEMENT MAY BE UPDATED OR MODIFIED IN A FUTURE WRITING DISTRIBUTED TO YOU BY ENTERTAINMENT PARTNERS, OR WITH ANY NEW SOFTWARE YOU RECEIVE AFTER YOUR INITIAL COPY, AND ANY MODIFICATIONS SHALL BE BINDING UPON RECEIPT THEREOF. THIS AGREEMENT IS ALSO AVAILABLE IN ITS MOST CURRENT VERSION ON THE INTERNET AT www.ep.com
This End-User License Agreement (“Agreement”) is a binding legal agreement between you (either an individual or a legal entity) and Entertainment Partners (“Entertainment Partners” or “EP”) regarding the Movie Magic Software consisting of the computer software, the associated media, any printed materials, and any online or electronic documentation (the “Related Media”) (collectively the “Software”) contained in this package or downloaded with this Agreement. The Software is the copyrighted work of EP, and use of the Software is governed by this Agreement. Any reproduction or use not authorized hereunder is expressly prohibited by law. By opening this package or installing the Software, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you do not have a valid license to use the Software. In such event, you may not download, install, use or copy the Software, and you should promptly contact Entertainment Partners or your retailer for instructions on a refund of fees paid by you, if any.
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed to you, not sold. Except for the limited license granted hereunder, Entertainment Partners retains all right, title and interest to the Software and related media and documentation, all copies thereof, and all proprietary rights therein, including copyrights, patents, and trade secret rights. You agree to keep the Software free and clear of all liens and encumbrances; any act you take purporting to create any lien or encumbrance on or with respect to the Software will be void and without effect.
GRANT OF LICENSE
This Agreement grants you the following rights, provided you comply with its terms:
a. Software: On the terms and conditions set forth herein, Entertainment Partners grants you a personal, non-transferable, non-exclusive, non-sublicensable and non-assignable license to use the Software solely for internal use and solely by a single user on a single personal computer. Unless you are an Academic User (“Academic User” is defined as an individual affiliated with an academic or research institution approved by Entertainment Partners), you may install the Software on at most one additional computer, but only if (a) the two computers are used primarily by the same person (such as your home computer and your office computer, or your desktop computer and your laptop computer) and (b) the two copies of the Software are never used simultaneously. If you are an Academic User, you may install the Software only on a single personal computer. You may not install the Software both on your computer and a co-worker’s computer. After you install the Software (which installation is your responsibility), you must activate the Software according to the Installation and Release Notes or other documentation accompanying the Software. You may transfer your copy of the Software to a different device, but you must completely remove the Software from the former device if you have already downloaded the Software to a second computer.
b. Network Use: The Software may not be stored or installed on a computer in such a way that it can be accessed by others over a network. The Software is for single-user use only. This Agreement does not grant you, and you do not have, the right to provide third parties with access to the Software. You may use remote access technologies (via the Internet) to access and use your licensed copy of the Software, provided that only the primary user of the device hosting the remote desktop session accesses and uses the Software in this manner.
c. Back-Up Copy: You may make a single back-up copy of the Software. You may use the back-up copy solely for archival or emergency restart purposes. You agree that you will not otherwise copy the Software or any portion of the Software. You must clearly label any such copy with Entertainment Partners copyright notice and any other proprietary legends that appear on the original copy.
d. Enhancements: Plug-ins, templates, macros, add-ons, and/or enhancements (“Enhancements”), if any, provided in the future will be subject to the terms of this Agreement except to the extent that conflicting or more restrictive provisions are included in the materials provided to you relating to such Enhancements.
e. Outages: Entertainment Partners does not warrant that the functions contained in the Software will meet your requirements, or that the operation of the Software will be uninterrupted or error-free. In the event of interruption or outages, Entertainment Partners will have no obligation to provide a credit of any fees paid by you for the Software or for the current term’s license. Notwithstanding any provision herein to the contrary, you agree that Entertainment Partners has no obligation to upgrade, update, provide Enhancements for or otherwise improve the Software, or provide any specified level of maintenance or customer support with respect to the Software.
f. Included Elements: Any elements included in the Software (such as graphics, photographs, art, document templates, sounds or symbols) (“Media Elements”) may not be sold or licensed separately by you or as part of a collection. Such elements are the property of EP and its licensors and are an integral part of the Software under this Agreement. In addition, you must indemnify and defend EP from and against any third party claims or lawsuits, including attorneys’ fees, that arise from or result from the licensing, use or distribution of Media Elements as modified by you, and include a valid copyright notice on any of your products and services that include such elements.
You acknowledge and agree that the Software has a copy protection mechanism that impedes the unauthorized copying or reproduction of the Software. You shall not act in any way to override such protection or make unlawful copies. If you are not using a licensed copy of the Software, you are not permitted to install the Software or any future Software updates or enhancements.
a. Failure to Comply: If you fail to observe any of the terms or conditions of this Agreement, your rights to use the Software shall cease immediately and Entertainment Partners shall have the right to bring an action for damages, to bring an action to restrain and enjoin you from further actions constituting a default under this Agreement, and to terminate this Agreement or any license granted hereunder. None of the remedies provided for in this paragraph shall be an exclusive remedy, and such remedies shall be in addition to any other remedies which Entertainment Partners may have under applicable law, under this Agreement or otherwise. EP reserves the right to discontinue services, including Internet-based services provided to you or through the use of the Software.
b. Infringement Claims: In the event of an actual or threatened claim of infringement of any intellectual property right (including copyright, patent, trade secret, or trademark) by a third party (“Infringement Claims”), Entertainment Partners reserves, at its sole election, the right to (i) terminate this Agreement and the rights granted hereunder without prejudice to any other rights, or (ii) modify or replace the Software such that it is no longer subject to an Infringement Claim. In the event Entertainment Partners terminates this Agreement due to Infringement Claims, Entertainment Partners will refund to you the fees paid by you, if any. The right to receive such refund shall be your sole remedy in the event of such termination. In lieu of so terminating this Agreement, Entertainment Partners may, at its sole option, modify or replace the Software such that it is no longer subject to an Infringement Claim.
c. Licensee’s Termination Obligations: In event of termination of this Agreement for any reason, you must (i) remove all copies of the Software and all of its components from all of your systems, and (ii) destroy or, at Entertainment Partners’ option, return to Entertainment Partners all such Software, components, and copies thereof.
d. Survival: Your obligations under Sections 4, 5 and 8 through and 14 of this Agreement shall survive termination of this Agreement and shall continue in full force and effect thereafter.
e. Enforcement: You acknowledge that Entertainment Partners will be irreparably damaged if the provisions of this Agreement are not specifically enforced, and that Entertainment Partners would not have an adequate remedy at law in the event of an actual or threatened violation by you of this Agreement. You therefore agree that Entertainment Partners shall be entitled to an injunction restraining any actual or threatened or further violations of your obligations under this Agreement and to any other appropriate decree of specific performance, all without the necessity of posting bond or showing any actual damage or that monetary damages would not afford an adequate remedy.
DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
a. Limitations on Copying and Distribution: You may not copy, reproduce, transmit, or distribute the Software, except and only to the extent that such activity is expressly permitted by the terms of Section 1 above or applicable law despite this limitation.
b. Limitations on Reverse Engineering and Modification: You may not reverse engineer, decompile, disassemble or modify the Software or create works derivative of the Software. You may not, and may not attempt to, alter, modify or circumvent the disabling mechanism (copy protection mechanism).
c. Sublicense, Rental and Third Party Use: You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Software, or directly or indirectly permit a third party to use or copy the Software.
d. Export: You may not export the Software without prior written approval from Entertainment Partners. If the Software was purchased in the United States of America, you agree to comply with all applicable United States laws and regulations pertaining to export controls. If the Software was purchased outside the United States, you may not re-export the Software except as permitted by the laws of the United States and the laws of the jurisdiction in which you purchased the Software.
All title and copyrights in and to the Software, including, but not limited to, any images, photographs, animations, video, audio, music, and text, incorporated in the Software, the accompanying printed materials, and any copies of the Software, are owned by Entertainment Partners or its suppliers. You may not copy the printed materials accompanying the Software.
U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (a) through (d) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, and in similar clauses in the NASA FAR Supplement, as applicable. Manufacturer is Entertainment Partners, 2950 N. Hollywood Way, Burbank, CA 91505.
Entertainment Partners warrants to you, for a period of ninety (90) days from the date you first open or install the Software, that, subject to the provisions of Section 1. “Outages” above, the Software will function in substantial accordance with the user manual. If a timely warranty claim is made due to non-conforming Software, Entertainment Partners will, at its sole option, use commercially reasonable efforts to either (i) correct any non-conformity between the Software and the user manual of which Entertainment Partners receives written notice within such ninety (90) day period, provided that Entertainment Partners can re-create such non-conformity, or (ii) replace such Software with a new copy of Software that operates in conformity with the user manual, if Entertainment Partners receives written notice within such 90-day warranty period. THIS LIMITED WARRANTY SHALL ONLY APPLY TO DEFECTS DISCOVERED DURING THE LIMITED WARRANTY PERIOD (NINETY DAYS). THERE IS NO WARRANTY OR CONDITION OF ANY KIND AS TO ANY DEFECTS DISCOVERED AFTER THE 90-DAY PERIOD, unless otherwise permitted by the law of your jurisdiction. The warranty set forth in this Section 7 shall not apply to any non-conformity caused in whole or in part by (i) any defect in any hardware or equipment, (ii) the failure of any hardware or equipment to function in accordance with applicable manufacturer’s specifications, (iii) any unauthorized modification or enhancement made to the Software, (iv) your failure to follow the most current instructions promulgated by Entertainment Partners from time to time with respect to the proper use of the Software or (v) your negligence or the negligence of any other third person or entity. The Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. Any supplements or updates to the Software after the 90-day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory. This limited warranty gives you specific legal rights. You may have other rights that vary from state to state or jurisdiction to jurisdiction.
SOLE AND EXCLUSIVE CUSTOMER REMEDIES
Entertainment Partners’ obligation to use commercially reasonable efforts to correct specification non-conformities during the Limited Warranty period as provided in Section 7 hereof shall constitute Entertainment Partners’ entire liability for a breach of the warranty set forth in Section 7 hereof. Your exclusive remedy for breach under the Limited Warranty shall be (a) repair of the non-conformity or replacement of the Software (as set forth above); or (b) return of the amount paid for the Software, if any; provided in either case that your request is accompanied by a receipt or proof of purchase.
NO OTHER WARRANTIES
NOTWITHSTANDING THE PROVISIONS IN SECTION 7, THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS, AND YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE SOFTWARE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ENTERTAINMENT PARTNERS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, IN FACT OR ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ENTERTAINMENT PARTNERS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE AND RELATED DOCUMENTATION WILL BE CORRECTED. FURTHERMORE, ENTERTAINMENT PARTNERS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE RESULTS OR THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ENTERTAINMENT PARTNERS OR AN ENTERTAINMENT PARTNERS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT ENTERTAINMENT PARTNERS OR AN ENTERTAINMENT PARTNERS AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE UNIFORM COMMERCIAL CODE AND THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ARE EXPRESSLY DISCLAIMED.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ENTERTAINMENT PARTNERS OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ENTERTAINMENT PARTNERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ENTERTAINMENT PARTNERS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT (OTHER THAN ITS LIABILITY UNDER SECTION 7, WHICH IS LIMITED BY THE PROVISIONS OF SECTION 8) SHALL BE LIMITED TO THE FEE PAID TO ENTERTAINMENT PARTNERS FOR THE SOFTWARE, IF ANY. YOU ARE SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF YOUR DATA USED IN CONNECTION WITH THE SOFTWARE AND ENTERTAINMENT PARTNERS SHALL HAVE NO RESPONSIBILITY OR LIABILITY OF ANY KIND IN CONNECTION WITH YOUR USE OF THE SOFTWARE, INCLUDING FOR ANY LOST DATA, INACCURATE INPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM THE USE OF THE SOFTWARE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to indemnify and hold Entertainment Partners harmless from and against any and all claims of any kind (along with attorney’s fees and litigation costs), including but not limited to, personal injury or property damage arising out of, resulting from, or in connection with results you have obtained through your negligent use or misuse of the Software or by your violation of any of the terms of this Agreement.
This Agreement is governed by and construed in accordance with the substantive laws of the State of California, United States as applied to agreements entered into and wholly performed within California between California residents, without reference to choice of law rules. Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in the County of Los Angeles, State of California and the parties hereto hereby submit to the in personam jurisdiction of such courts for purposes of any action or proceeding and waive any objection based on personal jurisdiction, venue or forum non conveniens or similar doctrine.
The acceptance of any purchase order placed by you is made conditional on your agreement to the terms set forth in this agreement, and Entertainment Partners agrees to furnish the Software only upon these terms and not upon those in your purchase order. This Agreement, in combination with any specific grant of license Addendum, as applicable constitutes the entire understanding and agreement between Entertainment Partners and you with respect to the transactions contemplated herein and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. Unless you are notified otherwise by EP, this Agreement shall apply to any updates or enhancements, supplements, add-on or Internet-based components, unless they are accompanied by separate terms. This Agreement may be amended or updated by EP upon prior written notice to you, and the Software may be updated on a regular basis. Any modification shall be in effect as of the date of publication and receipt by you. No employee, agent or other representative of Entertainment Partners has any authority to bind Entertainment Partners with regard to any statement, representation, warranty or other expression unless the same is specifically set forth or incorporated by reference herein.
If any taxes (other than taxes based on Entertainment Partners’ net income) or duties are due or assessed by reason of or in connection with the Agreement, such taxes or duties will by an additional charge to and payable by you. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Without limiting the foregoing, it is expressly understood and agreed that each and every provision of this agreement, which provides for a limitation of liability, disclaimer of warranties or exclusion of damages, is intended be the parties to be severable and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that in the event any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set for herein shall remain in effect.