EXHIBIT 10.10
OEM AND LICENSE AGREEMENT
-------------------------
THIS AGREEMENT is made as of July 1, 1999 ("Effective Date") by and between,
Information Technologies Division, a division of Sony Electronics Inc., a
Delaware corporation having offices at 0000 Xxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxx
00000 ("Sony") and Softlink Inc., a Nevada corporation, having offices at 0000
Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx 00000 ("Licensor").
WITNESSETH:
WHEREAS, Licensor is in the business of developing, producing, distributing and
selling computer programs throughout the world; and
WHEREAS, Sony wishes to license certain computer software programs distributed
by Licensor for sale by Sony with its currently existing or later developed
hardware products ("Hardware Products"), including a license to replicate, copy
and license same to its customers ("Customers"), for use with such Hardware
Products, and from time to time other software for license to its Customers, as
and if requested by Sony.
NOW, THEREFORE, in consideration of the terms and conditions of this Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged by the signing and delivery hereof, the parties agree as
follows:
1.0 GENERAL
The parties acknowledge that this Agreement generally contemplates:
(a) Licensor's delivery of the software program(s) with related installer
files (the "Program"), in object code form, in accordance with the
Specifications, all as set forth in Exhibit A (Program and
Specifications) attached hereto and made a part hereof. The delivery
shall be done on a Master Disk(s) suitable for replication so that
Sony can copy the Program for inclusion in its Hardware Products;
(b) Sony's sale of the Program as part of a bundle with a Hardware Product
and not as a standalone product. Notwithstanding any provision of this
Agreement, Sony shall be free to market and sell any product,
including without limitation, the Hardware Products, without the
Program;
(c) Licensor's delivery of its standard user manual, as well as the User
Guide for the Program in printed format (collectively the
"Documentation") suitable for inclusion in Sony's end user
documentation and on-line help system. The Documentation will be
delivered in an electronic format compatible with Word 6.0 for
Windows;
(d) Provision to Sony from time to time of software programs other than
the Program for license with Hardware Products or other Sony Products
by adding other software programs to the Program listed on Exhibit A
by written amendment(s) to this Agreement signed by the parties. (Any
Program subsequently added to Exhibit A shall thereafter be included
in the definition of "Program");
(e) Sony's licensing of the Program from Licensor for sale as part of a
bundle with a Hardware Product and/or other Sony products that Sony
will sell to end users directly or through its dealers or resellers;
and
(f) Licensor's continued support of the Program.
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The parties agree to effect the foregoing in accordance with the terms
and conditions hereof and the terms and conditions of any instruments
expressly made a part hereof.
2.0 DELIVERY OF THE PROGRAM
2.1 Final Delivery. Licensor will deliver the Program on a Master Disk(s)
suitable for duplication along with the required copies of the Documentation.
2.2 Delivery Schedule. Licensor will deliver the Program and Documentation
within five (5) working days of the signing of this Agreement.
3.0 LICENSE
3.1 License and Rights. Subject to all of the terms and conditions of this
Agreement, Licensor hereby grants Sony a nonexclusive, North America license and
right to replicate the Program and to replicate/copy and modify any portion of
the Documentation and incorporate same in Sony's documentation, including its
on-line help system and to license the use of the Program and the Documentation
as provided by Licensor or as modified and incorporated in Sony's documentation
to its Customers, all under Licensor's or its licensor's patents, copyrights and
other proprietary rights therein and thereto. Licensor acknowledges that Sony
may pre-install all or part of the Program on the Hardware Products and that
Sony may include in the product sold to the end user a recovery CD containing
some or all of the software titles sold with the Hardware Products, including
the Program, whereby the end user has the capability to re-install all or some
of the titles. Such pre-installation or duplication onto a recovery CD shall not
obligate Sony to incur additional royalties. The main copy of the Program sold
to the end user and any pre-installed or recovery copy shall be considered one
copy of the Program. Except for the limited license granted to Sony hereunder,
this Agreement does not confer or transfer to Sony any right, title or interest
in any of the Programs or Documentation or any intellectual property rights
relating thereto.
3.2 Sublicense. Sony shall have the right to sublicense the Program, the
Documentation and rights granted to it or any portion thereof to any of its
parent companies or its or their subsidiary or affiliated companies North
America ("Sony Companies") as a sublicensee under this Agreement provided all
such Sony Companies agree to be bound by the terms hereof.
3.3 Third Party Duplication. Sony may allow a third party to perform
duplication of the Program and/or Documentation on its behalf, subject to the
terms of this Section 3.
3.4 Royalty. In consideration of the license and rights granted to Sony under
Sections 3.1, 3.2 and 3.3 above, Sony shall pay to Licensor royalties in the
amount and in the manner provided in Exhibit B (Royalties) attached hereto and
made a part hereof.
3.5 Prices. Licensor represents that the prices offered to Sony are no higher
than those offered to similar OEM purchasers purchasing similar volumes.
3.6 Bookmarks/Hotlinks. Sony will insert a bookmark in its pre-installed
browsers listing the name of Licensor, the developer(s) of the Program, and the
Program and/or otherwise include on Sony related web pages "hot links" to
Licensor's and/or the developer of the Program's web pages (the "Licensor Web
Site"). Sony may terminate at any time in its sole discretion, with 30 day
notice to Licensor or any other party, such bookmarks and/or "hot links".
4.0 SUPPORT AND UPGRADES
4.1 Support. For a period commencing on the date of the delivery of the
Program until three (3) years from the date that Sony and its permitted
sublicensees last license the use of the
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Program to their customers, Licensor will support the Program, including bug
fixes and changes to maintain compatibility with the then dominant operating
system.
(a) For bugs Sony identifies in good faith as fatal or critical defects,
Sony will use its reasonable commercial efforts to notify Licensor within three
(3) working days of its discovery of the defect. Licensor will use its best
efforts to communicate a resolution (fix or otherwise) to Sony within three (3)
calendar days after such notification. All resulting Software revisions will be
provided in Gold Master to Sony within five (5) working days of communication of
the resolution, and shall thereafter be included in the definition of "Program".
If timely resolution is not achieved, the Program may be eliminated by Sony from
its bundling program and any prepaid or advanced royalties or fees shall be
promptly refunded to Sony.
(b) For bugs Sony identifies in good faith as minor bugs, Sony will use its
reasonable commercial efforts to notify Licensor within three (3) working days
of its discovery of the defect. Licensor will use its reasonable commercial
efforts to communicate a resolution (fix or otherwise) to Sony within three (3)
calendar days after such notification. All resulting Software revisions will be
provided in Gold Master to Sony within five (5) working days of communication of
the resolution, and shall thereafter be included in the definition of "Program".
If the user impact of all unresolved "Should Fix" defects is significant, in
Sony's sole commercially reasonable discretion, the Program may be eliminated by
Sony from its bundling program and any prepaid or advanced royalties shall be
promptly refunded to Sony.
4.2 Upgrades. Licensor will deliver updates and upgrades of the Program and
Documentation to Sony no later than to other similarly situated customers and in
any case prior to release to Licensor's end user customers. Upgrades and
updates are to be provided free of charge, or in any event under the same terms
and conditions as made available to other similarly situated customers.
4.3 Versions. Licensor will offer new versions and features of the Program and
Documentation to Sony on substantially the same terms offered to other similarly
situated customers.
4.4 Versions for End Users. Licensor will provide upgrades, updates or new
versions or features of the Program and Documentation to Sony's end users on
substantially the same terms as those offered to customers buying the Program
and Documentation at retail.
4.5 End User Support. 1. Licensor must provide end user customer support.
Sony will refer customers to Licensor when there appears to be a problem related
to the Program. 2. Licensor will provide training on the Program to Sony
technical support personnel from time to time during the term of the Agreement
without charge. Licensor will provide at least two (2) days of on-site training
per year to Sony's technical support staff at Sony's designated continental
United States location. 3. Licensor will have a separate toll free number
available for technical support directly to Sony technical support personnel to
be available M-F 8-5 PST at no charge. 4. Licensor will have a separate toll
free number available for technical support directly end users to be available
M-F 8-5 PST at no charge. These support obligations will continue for at least
one (1) year following delivery of the Program to Sony.
5.0 REPRESENTATIONS AND WARRANTIES AND OTHER COVENANTS
5.1 Title and Authority. Licensor represents and warrants to Sony that it has
the right to grant to Sony the license and rights granted to it under this
Agreement; and, that the Program and the Documentation and any Licensor Web Site
linked to by Sony and Sony's exercise of such license and rights will not
infringe or misappropriate any third party's patents, trademarks, copyrights or
other proprietary, or intellectual property rights.
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5.2 Content of Licensor Software. Licensor represents and warrants that
Licensor has obtained all necessary rights to third party intellectual property
contained in the Program, the Documentation and Licensor's Web Site, so that the
Program can function in accordance with normal use and visitors may utilize
Licensor's Web Site; to allow Sony to use, display and perform the Program and
Documentation and link to Licensor's Web Site; and, to use in Sony's marketing
material for its products, including the Sony personal computer product, any and
all images, sounds, or content contained in the Program or Documentation,
including all intellectual property rights contained therein.
5.3 No Encryption. The Program contains no encryption capabilities other than
password protection.
5.4 Program. Licensor represents that the Program and Documentation provided
to Sony is the full and complete version of the Program and Documentation sold
as a standalone product and described in applicable brochures.
5.5 Compliance. Licensor represents and warrants to Sony that it has obtained
all permits, approvals and licenses that apply to its delivery of the Program
and Documentation, and the license and rights it has granted to Sony and its
faithful observance and performance of its other obligations under the terms and
conditions of this Agreement.
5.6 Indemnification. Licensor shall defend, indemnify and hold Sony harmless
from and against all claims, suits, losses or damages (including court costs and
reasonable attorneys' and experts' fees) arising from or incident to its
misrepresentation of any representation or breach of any warranty made in
Sections 5.1, 5.2, 5.3, 5.4 and 5.5. This indemnification will survive the
termination of this Agreement.
5.7 Software Warranty. Licensor warrants to Sony that for a period of one (1)
year from the date of delivery of the Program and the Documentation, the Program
will perform substantially in accordance with the published specifications for
the Program, the Specifications, and the Documentation. Licensor further
warrants that the Program shall be Year 2000 Compliant, meaning that such
software shall accurately process date data (including, but not limited to,
calculating, comparing and sequencing) from, into, and between the twentieth and
twenty-first centuries, including leap year calculations, when used in
accordance with the Documentation. If the Program fails to perform in any way,
and Sony give Licensor notice to that effect, together with details about the
nature of the deficiency, Licensor will, at its own cost and expense, use its
best efforts to correct such deficiency within ten (10) working days. This
warranty does not cover any code of the Program which is modified in any manner
by Sony, its sublicensees or any of their customers.
5.8 Limitation of Liability. THE LIMITED WARRANTIES IN SECTION 5 ABOVE ARE THE
SOLE AND EXCLUSIVE WARRANTIES, IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, GIVEN BY LICENSOR INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT
WARRANT OR REPRESENT THAT THE PROGRAMS WILL BE ERROR FREE OR WILL OPERATE
WITHOUT INTERRUPTION.
THE LIABILITY OF EITHER PARTY TO THE OTHER UNDER ALL OF THE PROVISIONS OF
THIS AGREEMENT (OTHER THAN THE LIABILITY OF LICENSOR TO SONY UNDER SECTIONS 6.3
AND 6.4) SHALL BE LIMITED TO DIRECT DAMAGES AND, EXCEPT AS PROVIDED IN THIS
SECTION, SHALL NOT EXCEED THE AGGREGATE AMOUNT OF THE ROYALTIES PAID BY SONY TO
LICENSOR HEREUNDER. IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE TO THE OTHER
FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST
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PROFITS) EVEN IF THE OTHER PARTY HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
5.9 Warranty Disclaimer Packaged with Software. Sony will include with its
shrink-wrap license to the end user Customer language substantially in the form
attached hereto as Exhibit D.
5.10 Nondiscrimination in Employment. Licensor shall not discriminate against
any employee, or application for employment, because of race, creed, color,
national origin, sex, age, Vietnam Veteran's status or physical or mental
disability in connection with its delivery of the Program and Documentation or
in its faithful observance and performance of its other obligations under the
terms and conditions of this Agreement. In addition, Licensor will comply with
all applicable federal, state and local laws and regulations pertaining to
wages, hours and other terms and conditions of employment.
6.0 ACKNOWLEDGEMENTS, PATENTS, COPYRIGHTS, AND OTHER PROPRIETARY RIGHTS;
INDEMNIFICATION
6.1 Copyright Notice. Sony shall not remove or alter any copyright notice
contained in the Master Disk for inclusion with each copy of the Program
replicated by Sony. A copy of such notice is set forth on Exhibit E hereto.
6.2 Use of Trademark. Licensor hereby grants Sony the right to use the name(s)
and logo(s) by which the Program is marketed in Sony's sales literature,
advertising, internet programs and documentation and packaging relating to the
marketing, sales and distribution of the products incorporating or utilizing the
Program.
6.3 Warranty As To Rights. Licensor represents and warrants to Sony that it
has obtained, by license or otherwise, all rights, covenants, authorizations and
permissions required by Licensor or other third parties to: 1) grant Sony the
right to use the names or trademarks as provided in Section 6.2 above; 2) grant
Sony the licenses provided in Section 3.0 hereof; 3) make all representations
and warranties provided to Sony in this Agreement; and 4) grant Sony all other
rights and licenses provided in this Agreement and to perform all of its other
obligations as provided in this Agreement.
6.4 Intellectual Property Indemnification. Licensor shall defend, indemnify
and hold Sony and the Sony Companies harmless from and against all claims,
suits, losses or damages (including court costs and reasonable attorneys' and
experts' fees and expenses) arising from or incident to alleged or actual
infringement or misappropriation of any third party's patent(s), copyright(s),
trademark(s), trade secret(s), or other intellectual property right(s) arising
out of or in any way connected with the Program, the Documentation, Licensor's
trademarks, Licensor's Web Site linked to by Sony, or any repair, replacement,
updates, modifications and bug fixes to same. This indemnification shall
survive the expiration or termination of this Agreement.
7.0 TERM AND TERMINATION
7.1 Term. This Agreement shall commence as of the Effective Date and shall
continue thereafter, unless sooner terminated as provided in Sections 7.2, 7.3
and 7.4, for twelve (12) months (the "Initial Term"). This Agreement shall
automatically renew (unless terminated as provided in Sections 7.2, 7.3 and
7.4), for successive twelve (12) month periods ("Additional Terms") unless
either party provides to the other party notice (in accordance with section 8)
of non-renewal at least thirty (30) days prior to the expiration of the Initial
Term or any Additional Term. Notwithstanding anything contained herein to the
contrary, any volume purchase or pre-
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payment commitment or guarantee shall expire and terminate after the Initial
Term. All obligations expressly identified herein as having a limited period for
their observance and performance will expire upon the completion of such period.
7.2 Automatic Termination by Sony. This Agreement may be immediately
terminated by Sony giving Licensor notice to that effect upon the occurrence of
any of the following:
(a) Licensor engages directly or indirectly in any attempt to defraud
Sony; or
(b) Licensor misrepresents any of the representations or breaches any of
the warranties set forth in Sections 5.0 or 6.0; or,
(c) Licensor becomes insolvent or unable to pay any and/or all of its
debts as they mature in the ordinary course of its business; or, makes
an assignment for the benefit of its creditors; or, any proceedings
are commenced by, for or against it under any bankruptcy, insolvency
or debtors' relief law; or, it is liquidated or dissolved.
7.3 For Convenience. This Agreement may be terminated by Sony giving Licensor
thirty (30) days' prior notice to that effect.
7.4 For Cause. Except as may be provided in Section 7.2, upon either party's
failure to observe and perform its obligations under the terms and conditions of
this Agreement, the non-defaulting party may give the defaulting party notice to
that effect, and, if curable, the defaulting party shall then have thirty (30)
days to cure same. If such default is not cured within such period, then this
Agreement will terminate upon the non-defaulting party giving the defaulting
party further notice to that effect.
8.0 NOTICES
All notices and other communications required or permitted to be given under
this Agreement shall be in writing and will be delivered personally, or mailed
by registered or certified mail, return receipt requested, postage prepaid, or
by overnight courier or telex, telecopy or other form of rapid transmission,
confirmed by mailing as described above, addressed as follows:
If to Licensor: Softlink Inc.
0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxx
If to Sony: Sony Electronics Inc.
0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Law Department
And
Sony Electronics Inc.
0000 Xxxxxx Xxxx, M/S SJ1A5
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Any notice so addressed and delivered personally will be deemed given upon
receipt. Any notice so addressed and mailed shall be deemed given after deposit
in the United States mails, and if sent by rapid transmission followed promptly
by mailing, upon receipt of such transmission.
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Either party may change its address by giving the other written notice to that
effect in the manner provided in this Section.
9.0 MISCELLANEOUS
9.1 Assignment. Except for Sony's right to sublicense and to permit third
party duplication of the Program and/or Documentation in accordance with this
Agreement, neither party shall assign or otherwise transfer this Agreement or
any interest herein or any right hereunder without the prior written consent of
the other, which consent will not be unreasonably delayed or withheld, except
that Sony may assign this Agreement to any of its parent companies or its or
their subsidiaries or affiliated companies without Licensor's consent by giving
Licensor notice to that effect. Any other purported assignment, transfer or
attempt to assign or transfer this Agreement by either party without such
consent will be deemed null, void and of no force or effect.
9.2 Change of Ownership. Licensor will inform Sony of a change of ownership of
more than twenty five (25%) percent of Licensor's stock ownership.
9.3 Waivers. Neither party's waiver of any default under this Agreement or
failure to enforce any term or condition hereof at any time shall in any way
affect, limit or waive such party's right thereafter to enforce and compel
strict compliance herewith and with every term and condition hereof.
9.4 Non-Exclusiveness. Any specific right or remedy provided in this Agreement
shall not be exclusive, but will be cumulative of all other rights and remedies
set forth herein or allowed by law.
9.5 Headings. The headings of Articles and Sections in this Agreement are for
convenience and reference only, and they shall in no way define, limit or
describe the scope thereof and will not be considered in the interpretation or
construction hereof.
9.6 Survival. Any term or condition of this Agreement which is specifically,
by its terms, intended to survive the expiration or earlier termination hereof
shall survive such expiration or termination and continue, thereafter, in full
force and effect.
9.7 Governing Law/Waiver of Jury Trial. This Agreement shall be interpreted,
construed and enforced in accordance with the local law of the State of
California, without reference to its conflicts of law. THE PARTIES HEREBY WAIVE
TRIAL BY JURY IN ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT.
9.8 Invalidity. The invalidity or unenforceability of any term or condition of
this Agreement shall not effect the other terms and conditions, and such invalid
or unenforceable term or condition will, in all events, be interpreted,
construed and enforced to the fullest extent allowed by law.
9.9 Confidentiality. Except as provided below, each party acknowledges that all
information furnished or disclosed by the other party that is either marked
"confidential", "proprietary", or with a similar legend, or if not so marked, is
identified as confidential at the time of disclosure and confirmed in writing
within ten (10) days thereafter, and all software, is "Confidential Information"
of the disclosing party. The receiving party agrees that it will not permit the
duplication, use or disclosure of any such Confidential Information to any third
party (other than employees, agents or contractors of it or its affiliates who
agree in writing to maintain the confidentiality of the Confidential Information
in accordance with the terms of this Agreement). The receiving party shall take
appropriate action, by instruction, agreement or otherwise, with any person
permitted access to the Confidential Information so as to enable it to satisfy
its obligations hereunder. "Confidential Information" shall not include any
information which: (i) at
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the time of the disclosure is in the public domain; (ii) after disclosure is
published or otherwise becomes part of the public domain through no fault of the
receiving party; (iii) the receiving party can document already was in its
possession at the time of the disclosure hereunder or which rightfully comes
into its possession from a third party source.
9.10 Entirety of Agreement. This Agreement supersedes, terminates an otherwise
renders null and void any and all prior agreements or understanding entered into
between the parties with respect to the subject matter hereof. This Agreement
represents and incorporates the entire understanding of the parties with respect
to such subject matter, and each party acknowledges that there are no
warranties, representations, covenants or understandings of any kind, nature or
description whatsoever made by either to the other, except those expressly set
forth herein and therein. This Agreement may be modified only by a written
instrument signed by the parties which states that it is an amendment hereto.
IN WITNESS WHEREOF, the parties have signed and delivered this Agreement as of
the date first above written.
INFORMATION TECHNOLOGIES
DIVISION, A DIVISION OF
SONY ELECTRONICS INC. SOFTLINK INC.
By: /s/ Xx Xxxxxxx By: /s/ Xxxxxxx Xxxx
--------------------------------------- ------------------------
Print Name: Xx Xxxxxxx Print Name: Xxxxxxx Xxxx
------------------------------- -----------------
Title: Vice President Information Title: President
------------------------------------ ----------------------
Technology Division Engineering &
------------------------------------
Manufacturing Sony Electronics, Inc.
------------------------------------
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EXHIBIT A
---------
PROGRAM AND SPECIFICATIONS
The Program(s) consists of: inChorus, version 3.0.
The Specifications shall conform to the functionality and performance parameters
documented in the most current User Manual for inChorus.
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EXHIBIT B
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ROYALTIES
Sony shall pay to Licensor a royalty for the Program of $0.20 U.S. per unit.
Royalty payments will be made by Sony to Licensor on a quarterly basis.
Royalties will be calculated based upon the number of copies replicated by Sony
and shipped by or for Sony to an end user customer or reseller with or for a
Hardware Product. No royalties shall be due for copies of the Program made for
testing or demonstration purposes.
There will be no downstream revenue sharing for the Program under this
Agreement.
All royalty payments hereunder shall be made within thirty (30) days from the
end of the quarter to which they relate, and shall be made in U.S. dollars,
without any deduction for taxes, currency export charges, wire transfer or other
fees of any kind. Sony will maintain complete records, during and for one (1)
year after the termination or expiration of this Agreement (or as may otherwise
be required by applicable law), regarding the distribution and sublicensing of
the Programs. Within thirty (30) days after the close of each fiscal quarter of
Sony, Sony will deliver to Licensor a report which will provide all information
reasonably necessary for computation and confirmation of the royalty payments,
if any, due or credited to Licensor for such quarterly period. An independent
certified public accountant selected by Licensor and approved in writing by Sony
(which approval shall not be unreasonably withheld), may, upon reasonable notice
and during normal business hours, inspect the records of Sony on which such
reports are based. The audit, and all information and reports obtained
therefrom, shall be subject to the confidentiality obligations provided in
section 9.9 of this Agreement. If, upon performing such audit, it is determined
that Sony has underpaid Licensor by an amount greater than five percent (5%) of
the payments due Licensor in the period being audited, Sony will bear all
reasonable expenses and costs of such audit in addition to its obligation to
make full payment of such underpayment.
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EXHIBIT C
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UPGRADES AND SUPPORT
In addition to its warranty obligations under Section 5.7 of the Agreement,
Licensor will make all upgrades and enhancements to the Programs beyond those
specified in Exhibit A, and other Programs available to Sony at the best
wholesale price offered by Licensor to its distributors or resellers, or at no
charge if offered for no charge to Licensor's distributors or resellers.
Any other support requested by Sony will be provided at Licensor's then-
prevailing time-and-materials rate for licensees paying similar royalty rates to
Licensor.
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EXHIBIT D
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END-USER LICENSE AGREEMENT FOR SONY SOFTWARE
IMPORTANT-READ CAREFULLY: This End-User License Agreement ("License") is a
legal agreement between you and Sony Electronics Inc. ("SONY"), the manufacturer
of your computer system ("COMPUTER"). All Sony software and third party
software (other than software provided by Microsoft Corporation) shall be
referred to herein as the SONY SOFTWARE. This License covers only the SONY
SOFTWARE . The SONY SOFTWARE includes computer software, the associated media,
any printed materials, and any "on-line" or electronic documentation. All
software provided by Microsoft Corporation is covered by a separate End User
License Agreement. You may use the SONY SOFTWARE only in connection with the
use of the COMPUTER. By installing, copying or otherwise using the SONY
SOFTWARE, you agree to be bound by the terms of this License. If you do not
agree to the terms of this License, SONY is unwilling to license the SONY
SOFTWARE to you. In such event, you may not use or copy the SONY SOFTWARE ,
and you should promptly contact SONY for instructions on return of the unused
product(s) for a refund of the purchase price of the COMPUTER allocable to the
SONY SOFTWARE.
COPYRIGHT. All title and copyrights in and to the SONY SOFTWARE (including but
not limited to any images, photographs, animation, video, audio, music, text and
"applets," incorporated into the SONY SOFTWARE), and any copies of the SONY
SOFTWARE, are owned by SONY or its suppliers. All rights not specifically
granted under this License are reserved by SONY.
HIGH RISK ACTIVITIES. The SONY SOFTWARE 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 SONY SOFTWARE could lead directly to death, personal
injury, or severe physical or environmental damage ("High Risk Activities").
SONY and its suppliers specifically disclaim any express or implied warranty of
fitness for High Risk Activities.
PROHIBITION ON EXPORT. EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY
CANADIAN CITIZENS, THE SONY SOFTWARE AND ANY UNDERLYING TECHNOLOGY MAY NOT BE
EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON"
AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE
WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED
STATES. BY DOWNLOADING OR USING THE SONY SOFTWARE, YOU ARE AGREEING TO THE
FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A "FOREIGN PERSON" OR UNDER
THE CONTROL OF A FOREIGN PERSON.
U.S. GOVERNMENT RESTRICTED RIGHTS. THE SOFTWARE PRODUCT and documentation are
provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United
States Government is subject to restrictions as set forth in subparagraph (c)(1)
and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-
19, as applicable. Manufacturer is Sony Electronics Inc., Xxx Xxxx Xxxxx, Xxxx
Xxxxx, Xxx Xxxxxx 00000.
LIMITED WARRANTY
LIMITED WARRANTY ON CD-ROM MEDIA. SONY warrants that for a period of ninety
(90) days from the date of its delivery to you the CD-ROM media on which the
back-up copy of the SONY SOFTWARE is furnished to you will be free from defects
in materials and workmanship under normal use. This limited warranty extends
only to you as the original licensee. SONY's entire liability and your
exclusive remedy will be replacement of the CD-ROM media not meeting SONY's
limited warranty and which is returned to SONY with proof of purchase in the
form of a xxxx of sale (which is evidence that the CD-ROM media is within the
warranty period). SONY will have no responsibility to replace a disk damaged by
accident, abuse or misapplication. ANY IMPLIED WARRANTIES ON THE CD-ROM MEDIA,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO
THESE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL
RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
EXCLUSION OF WARRANTY ON SONY SOFTWARE. You expressly acknowledge and agree
that use of the SONY SOFTWARE is at your sole risk. The SONY SOFTWARE is
provided "AS IS" and without warranty of any kind and SONY and SONY's licensors
(hereinafter, SONY and SONY's licensors shall be collectively referred to as
"SONY") EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. SONY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE
SONY SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SONY
SOFTWARE WILL BE CORRECTED. FURTHERMORE, SONY DOES NOT WARRANT OR MAKE ANY
REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SONY SOFTWARE
IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR
WRITTEN INFORMATION OR ADVICE GIVEN BY SONY OR A SONY AUTHORIZED REPRESENTATIVE
SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
SHOULD THE SONY SOFTWARE PROVE DEFECTIVE. YOU (AND NOT SONY OR A SONY AUTHORIZED
REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR
CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
HEREINAFTER, SONY AND SONY'S LICENSOR'S SHALL BE COLLECTIVELY REFERRED TO AS
"SONY." SONY SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THIS PRODUCT. SUCH
DAMAGES INCLUDE, BUT ARE NOT LIMITED TO , LOSS OF PROFITS, LOSS OF REVENUE, LOSS
OF DATA, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, DOWN TIME AND
PURCHASER'S TIME, EVEN IF SONY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN ANY CASE, SONY'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS
AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU ALLOCABLE TO THE
SONY SOFTWARE. SOME STATES
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES,
SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
Should you have any questions concerning this license or this limited warranty,
you may contact SONY by writing to SONY at Sony Technical Response Center, 00000
Xxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000.
EXHIBIT E
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COPYRIGHT NOTICE
[TO BE PROVIDED BY LICENSOR]
