Winamp Media Player - MP3, Video, and Music Player - Winamp
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Mais resultados de winamp.com » NULLSOFT END USER LICENSE AGREEMENT FOR THE WINAMP SOFTWARE WELCOME! YOU MAY USE THE WINAMP SOFTWARE AND APPLICATIONS ONLY ON THE CONDITION THAT YOU AGREE TO ABIDE BY ALL OF THE TERMS IN THIS LICENSE AGREEMENT. PLEASE NOTE THAT YOU WILL BE GIVEN THE OPTION OF INSTALLING ADDITIONAL THIRD PARTY OFFERINGS. TO USE SUCH THIRD PARTY OFFERINGS YOU MUST AGREE TO ANY ADDITIONAL TERMS AND CONDITIONS FOR SUCH THIRD PARTY OFFERINGS THAT ARE APPENDED BELOW THE WINAMP PLAYER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS FOR SELECTED THIRD PARTY OFFERINGS PLEASE RETURN TO THE DOWNLOAD MANAGER AND UNCHECK ANY THIRD PARTY OFFERINGS CHECKED. CLICKING THE ACCEPTANCE BUTTON BELOW INDICATES YOUR ACCEPTANCE OF THE TERMS OF THE WINAMP PLAYER LICENSE AGREEMENT AND THE TERMS OF THE LICENSE AGREEMENTS FOR ANY THIRD PARTY OFFERINGS YOU HAVE CHECKED OFF IN THE DOWNLOAD MANAGER. IMPORTANT NOTICE REGARDING YOUR COMPUTER SETTINGS PLEASE NOTE THAT CERTAIN FEATURES AND FUNCTIONALITY OF THE WINAMP CLIENT AND THIRD PARTY COMPONENTS MAY CHANGE YOUR COMPUTER SETTINGS. YOU WILL HAVE THE OPPORTUNITY TO DECLINE THESE CHANGES AS PART OF YOUR INSTALLATION OF THE SOFTWARE. DURING THE INSTALLATION PROCESS, YOU WILL BE PROMPTED TO INSTALL THE SOFTWARE, Winamp Remote, Winamp Toolbar, the Winamp Orgler application and the eMusic icon AND YOU WILL BE PROMPTED TO CHANGE SOME SETTINGS IN YOUR COMPUTER. You will have a choice whether to install the software and whether some settings will be changed on your computer. You will also have a choice whether Winamp reports anonymous usage statistics to us, which we use to improve Winamp. When Winamp Remote starts, it will automatically scan your computer for audio files and create a list of those files, which will be used to enable the remote service. This version of Winamp Remote will automatically create a report for Nullsoft. IF YOU OPT TO INSTALL THE EMUSIC PROMOTIONAL ICON, YOU CONSENT TO THE DOWNLOAD AND INSTALLATION OF ONE OR MORE ICONS ON YOUR COMPUTER'S DESKTOP THAT LINK TO INFORMATION ABOUT THE ICONS, SOFTWARE OR EMUSIC SERVICE AND/OR A REGISTRATION PAGE FOR EMUSIC'S INTERNET BASED MUSIC SUBSCRIPTION BASED SERVICE AND/OR OTHERWISE PROVIDE PERIODIC REMINDERS TO YOU IN THE FORM OF "POP-UP" NOTICES ON YOUR COMPUTER'S DESKTOP. *********************************************************** This Agreement GOVERNS THE DOWNLOAD AND USE OF the Winamp Software (as defined below) provided by Nullsoft, Inc., its parent AOL Inc. ("AOL"), and their respective affiliates and suppliers ( collectively, "Nullsoft"). BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE SOFTWARE, YOU (YOU) ELECTRONICALLY AGREE ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT (IF APPLICABLE) THAT YOU OR SUCH ENTITY ARE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT AND THE WINAMP PRIVACY POLICY LOCATED AT http://www.winamp.com/legal/privacy AS THE "LICENSEE." YOU ALSO AGREE TO RECEIVE REQUIRED NOTICES, TERMS AND INFORMATION FROM US ELECTRONICALLY. In this Agreement, you are agreeing to the following terms: I. Winamp License Agreement II. Supplemental Terms for eMusic III. Supplemental Terms for Gracenote Terms of Use IV. Supplemental Terms for Winamp Remote Provided by Orb Networks, Inc. Beta Testing Agreement (if you elect to download and test the Winamp Remote application) V. Supplemental Terms for the Winamp/AOL Toolbar VI. Supplemental Terms for the Winamp Orgler Application VII. Supplemental Terms for Internet Explorer and Firefox Browser Detection VIII. Supplemental Terms for OpenCandy Software *********************************************************** I. WINAMP SOFTWARE LICENSE AGREEMENT 1. DEFINITIONS. a) "Agreement" means this Winamp License Agreement. b) "Basic Software" means the executable code version of only those features of the Winamp player identified as the features of the free Winamp player at the following URL: http://www.winamp.com/download, the AOL/Winamp Toolbar, Winamp Remote, and any Nullsoft created Skins and Nullsoft Plug-ins distributed by Nullsoft for use with the Software, whether Licensee installs them at the time of installation of the Winamp player or separately from the Winamp.com website. Any feature identified as a feature of the Pro version of the Winamp player either at the above URL or within the Software is not part of the Basic Software. c) "Documentation" means the help pages hosted on the Winamp.com website, which are accessible through the Winamp Help menus, as well as the skinning information available at http://dev.winamp.com/wiki/Main_Page d) "Nullsoft Plug-in" means a plug-in (a small software program that adds a specific capability to another program, such as the Winamp player) owned and offered by Nullsoft as part of the Software download and/or via http://www.winamp.com/download for use with the Software. e) "Pro Software" means the executable code version of the fully functional Winamp player, including both the Basic Software and all features of the Pro Winamp player identified at the following URL: http://www.winamp.com/download. f) "Software" means the Basic Software and/or the Pro Software, as applicable to Licensee, all associated software, upgrades, updates, patches, plug-ins, supplemental applications, associated media, Documentation and online service provided by Nullsoft, its affiliates and suppliers. g) "Skin" means a graphical interface for the Software that changes the look but not the functionality, and includes the text files that define how the skin is built, the scripts that define how it should behave, and the graphics that create the visual look. h) "Update" means a revision to the Software designated by a change in the version number to the right of the decimal place. i) "Upgrade" means a revision to the Software designated by a change in the version number to the left of the decimal place. j) "Winamp/AOL Toolbar" means a software plug-in for an Internet browser powered by AOL that contains a row of icons that activate commands or functions to Winamp and other online applications when clicked. k) "Winamp Remote" means the beta testing version of the software and services provided by Orb Network, Inc. that is designed to give Licensee access to Licensees digital content remotely from a variety of mobile computing devices through the use of the Software. 2. LICENSE GRANT. a) Basic Software. Subject to Licensee's compliance with the terms and conditions of this Agreement, Nullsoft grants Licensee a free-of-charge, personal, revocable, non-exclusive, and non-transferable license to install and use the Basic Software. Nullsoft also grants Licensee permission to create Skins for the Software by modifying the winamp.modern.wal or other included Skin file, in accordance with the Documentation. Licensee may distribute the Skins it creates, but it must rename the file it distributes and may not use the Winamp name or any Winamp file name in the name of the Skin file it distributes. b) Pro Software. Provided Licensee complies with the terms and conditions of this Agreement and has paid the applicable license fees for the premium features of the Pro Software, Nullsoft grants Licensee a personal, revocable, non-exclusive, and non-transferable license to install and use the Pro Software. Upon Nullsoft's receipt of the applicable license fees, a serial number key will be issued to Licensee to unlock the premium features of the Pro Software. Licensee may only access and use such premium features using the serial number key provided to it by Nullsoft. c) Nullsoft may offer software, features and applications for beta testing (the "Beta Applications."). The Beta Application are provided AS IS and may be used for a limited time in order to evaluate and provide feedback about it to Nullsoft. Nullsoft is under no obligation to release a commercial version of each Beta Application. Nullsoft may alter features, licensing terms, or other characteristics of any version of the Beta Applications that it releases. Licensee acknowledges that the Beta Applications are experimental and have not been made available for general release; they may contain errors, bugs, or other problems. Any access, use and testing of Beta Applications is at Licensees own risk. Certain Beta Applications are designed to expire or cease working on a date determined solely by Nullsoft, and Nullsoft shall have no liability to Licensee when such applications expire. d) Winamp is controlled and operated within the United States. Although Winamp is accessible from outside of the United States, Licensee understands and agrees that Winamp (i) is not designed or customized for distribution for any specific country or jurisdiction (Territory), (b) is not intended for distribution to, or use by, any person or entity in any Territory where such distribution or use would be contrary to local law or regulation, (c) may not be appropriate or available for access or use in any particular Territory, and (d) is provided without any content filtering or rating mechanism. Nullsoft has no obligation to assure that Winamp complies with applicable local laws and regulations within the Territories in which Licensee elects to use Winamp. Licensees use of Winamp within any specific Territory is entirely at Licensees own risk. Licensee is solely responsible for complying with any local laws in which Licensee accesses or uses Winamp. 3. RESTRICTIONS ON USE. Licensee may not: (i) modify or create any derivative works of the Software; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to (a) derive the source code, underlying ideas, algorithms, structure or organization of the Software, or (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software (except to the extent applicable laws specifically prohibit such restriction); (iii) attempt to access or use the premium features of the Pro Software if Licensee has not paid the applicable fees or by any manner or method other than using the key provided by Nullsoft; (iv) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer the Software or rights thereto; (v) use the Software to reproduce, display, perform, or distribute audio and/or video content in any manner that violates any U.S. or foreign laws or regulations or any third party's rights, including copyright, privacy or publicity rights, or other intellectual property right; (vi) use the Software in a timesharing or service bureau arrangement; or (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. The Nullsoft produced Skins that are provided with the Software may only be used with the Software and may not be used with any other media player or other third party software, products, or applications of any kind. Supply of this Software does not convey a license nor imply any right to distribute content created with this Software in revenue-generating broadcast systems (terrestrial, satellite, cable and/or other distribution channels), revenue-generating streaming applications (via Internet, intranets and/or other networks), other revenue-generating content distribution systems (pay-audio or audio-on-demand applications and the like) or on commercially distributed physical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like). An independent license for such use is required. For details, please visit http://mp3licensing.com. 4. NEED FOR CONTENT LICENSES. This license provides no rights with respect to any musical compositions, sound recordings, video recordings, or other audio and/or video materials ("Content") that may be reproduced, encoded, distributed, transmitted, performed, or otherwise used in connection with the Software. Licensee alone is responsible for ensuring that any Content is properly used in accordance with applicable laws and the rights of any third party with respect to such Content. 5. SUPPORT. a) Basic Software. If Licensee is using the Basic Software, Licensee will have access to community forums, FAQs, and other online self help services, but will not be entitled to receive from Nullsoft any technical support or telephone assistance. Use of community forums and other online service are subject to additional terms. b) Pro Software. If Licensee is using the Pro Software, in addition to the self help services available, Licensee shall be entitled to reasonable telephone and email customer support during normal business hours for thirty (30) days commencing on the date Licensee receives the Pro Software key. No customer support is provided for Updates or Upgrades received pursuant to this Agreement. 6. FEES. There is no license fee for the Basic Software. A license fee is required in order to receive a key to access the premium features of the Pro Software. Fee information is available at: http://www.winamp.com/download. 7. UPGRADES AND UPDATES. a) Basic Software. This license does not entitle Licensee to Updates or Upgrades to the Basic Software. In order to receive an Update or Upgrade to the Basic Software, Licensee must agree to the then current license agreement and download the Update or Upgrade from http://www.winamp.com/download. b) Pro Software. This license does not entitle Licensees of the Pro Software to Updates or Upgrades to the Pro Software. If Updates or Upgrades to the Pro Software are made available, they will be available from http://www.winamp.com/download and will be subject to Nullsoft's then current license agreement and payment of additional license fees, if any. 8. LICENSEE REPRESENTATIONS. Licensee represents and warrants that it has the legal capacity to enter into this Agreement, that it will use the Software only for lawful purposes and in accordance with this Agreement, and that it will not use the Software to violate any law, regulation or ordinance or any right of Nullsoft or its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. Licensee further warrants that Licensee will abide by all terms of this Agreement. 9. REGISTRATION; ONLINE SERVICES. Nullsoft, its affiliates and suppliers may provide online services for use with the Software. Nullsoft may change or cancel those services at any time. In order to use these interactive services, Licensee will need to register and obtain log-in credentials, such as a User ID. Licensee must provide accurate identification, contact, and other information required as part of the registration process. Licensee to keep such information current. Licensee may not create any script or other automated tool that attempts to create multiple developer accounts. We may in our sole discretion reject any registration for any reason. By registering, Licensee represents and warrants that Licensees information is accurate. Our affiliates (e.g., AIM) may give Licensee the ability to access other affiliate services with Licensees User ID. Licensee understands and agrees that Licensees use of services provided by our affiliates may be subject to additional terms, conditions and privacy policies, which Licensee agrees to abide by when Licensee accesses and users such services. 10. ELECTRONIC NOTICE DELIVERY POLICY. Nullsoft, when possible, transacts with users of its products electronically. WHEN LICENSEE PROVIDES NULLSOFT WITH LICENSEES EMAIL ADDRESS, E.G. IN ORDER TO RECEIVE THE KEY FOR THE PRO SOFTWARE OR TO RECEIVE NEWSLETTERS, LICENSEE CONSENTS TO RECEIVE ELECTRONICALLY FROM NULLSOFT ANY PRIVACY OR OTHER NOTICES, AGREEMENTS, DISCLOSURES, REPORTS, DOCUMENTS, COMMUNICATIONS, OR OTHER RECORDS (COLLECTIVELY, "NOTICES"). Licensee agrees that Nullsoft generally can send Licensee electronic Notices to the e-mail address that Licensee provided to Nullsoft, if any. Licensee must check its designated e-mail address regularly for Notices. Licensee must have a personal computer with a modem connected to a communications source (telephone, wireless or broadband), a Windows-based operating system with an Internet browser, and Internet e-mail software in order to access electronic communications. Licensee will need a printer attached to your personal computer to print any Notices. The delivery of any Notice from Nullsoft is effective when sent by Nullsoft, regardless of whether Licensee reads the Notice when received or whether Licensee actually receives the delivery. Licensees only method of withdrawing consent to receive Notices electronically is to terminate Licensees use of the Pro Software and/or cancel any newsletter subscriptions, as applicable. 11. TERMINATION. Should Licensee breach this Agreement, Licensee's right to use the Software shall terminate immediately and without notice. The respective rights and obligations of Nullsoft and Licensee under the provisions of Sections 3 ("Restrictions on Use"), 4 ("Need for Content Licenses"), 10 ("Electronic Notice Delivery Policy"), 11 ("Termination"), 12 ("Proprietary Rights"), 14 ("Indemnification"), 17 ("Limitation of Liability"), 21 ("Third Party Services or Products") and 22 ("Miscellaneous") shall survive expiration or termination of this Agreement and Licensee agrees to continue to be bound by those terms. Upon termination, Licensee shall destroy all copies of the Software. 12. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Software shall remain in Nullsoft and/or its licensors and other suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Nullsoft's or its licensors' or other suppliers' ownership of or rights with respect to the Software. The Software is protected by copyright and other intellectual property laws and by international treaties. All trademarks used in connection with the Software are owned by Nullsoft, its affiliates or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. Title and related rights in the Content are the property of the applicable content owners and are protected by applicable law. Licensee agrees that Nullsoft may use in any manner and without limitation all comments, suggestions, complaints and other feedback Licensee provides relating to the Software. 13. USE AND AVAILABILITY OF OPEN SOURCE CODE. Portions of the Software use software components developed through various open source projects. The licenses and availability of source code for such components are specified in the copyright notice file delivered with this Software. 14. INDEMNIFICATION. Licensee agrees to indemnify, hold harmless, and at Nullsoft's request, to defend Nullsoft, its affiliates, , licensors and suppliers from any and all costs, damages and reasonable attorneys' fees resulting from any breach of this Agreement or claim that Licensee's use of the Software has injured or otherwise violated any right of any third party or violates any law. 15. LIMITED WARRANTY FOR PRO SOFTWARE. Provided Licensee has paid the applicable license fees for the Pro Software and is in compliance with the terms and conditions hereof, for sixty (60) days after the date of download of the Pro Software (the "Warranty Period"), Nullsoft warrants that the unmodified Pro Software, when properly installed and used, will substantially achieve the functionality described in the applicable Documentation. This limited warranty does not apply for plug-ins or supplemental applications that Licensee may subsequently elect to install and use with the Pro Software. THIS LIMITED EXPRESS WARRANTY FOR THE PRO SOFTWARE CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE SOFTWARE. NULLSOFT AND ITS LICENSORS AND OTHER SUPPLIERS DO NOT MAKE, AND HEREBY EXCLUDE AND DISCLAIM, ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PRO SOFTWARE AND ANY UPDATES OR UPGRADES THERETO, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT OF THIRD PARTIES' RIGHTS, AND SECURE, ERROR-FREE OR UNINTERRUPTED OPERATION. NULLSOFT AND ITS LICENSORS AND OTHER SUPPLIERS SHALL HAVE NO OBLIGATIONS UNDER THE WARRANTY PROVISIONS SET FORTH HEREIN IF LICENSEE ALTERS OR MODIFIES THE PRO SOFTWARE; USES THE PRO SOFTWARE ON A COMPUTER SYSTEM OR IN A MANNER NOT SPECIFIED BY NULLSOFT; OR LICENSEE VIOLATES THE TERMS OF THIS AGREEMENT. IN THE EVENT OF A BREACH OF THIS WARRANTY, AND IF LICENSEE PROVIDES NULLSOFT WITH A WRITTEN REPORT DURING THE WARRANTY PERIOD OF ANY ERRORS OR FAILURES, NULLSOFT WILL USE REASONABLE EFFORTS TO PROMPTLY CORRECT, REPLACE OR PROVIDE A WORK AROUND FOR SUCH ERROR OR FAILURE, AT NO CHARGE TO LICENSEE, OR AT NULLSOFT'S SOLE OPTION, PROVIDE A REFUND TO LICENSEE. THIS IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES HEREUNDER. NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES; HOWEVER, THE EXCLUSIONS OF NULLSOFT'S WARRANTY IN THIS LIMITED WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. 16. DISCLAIMER OF WARRANTY FOR THE BASIC SOFTWARE. THE BASIC SOFTWARE IS PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. NULLSOFT, ITS LICENSORS AND OTHER SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES THAT THE BASIC SOFTWARE IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE BASIC SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, OR THAT ERRORS IN THE BASIC SOFTWARE WILL BE CORRECTED, AND THE IMPLIED WARRANTIES THAT THE BASIC SOFTWARE IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, NULLSOFT, ITS LICENSORS AND OTHER SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE BASIC SOFTWARE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NULLSOFT OR A NULLSOFT AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. NULLSOFT AND ITS LICENSORS AND OTHER SUPPLIERS HAVE NO LIABILITY WITH RESPECT TO LICENSEE'S USE OF THE BASIC SOFTWARE. LICENSEE BEARS THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE AND ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE BASIC SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. 17. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NULLSOFT, AOL Inc., OR THEIR RESPECTIVE PARENTS, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "NULLSOFT GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN 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, THE NULLSOFT GROUP'S ENTIRE COLLECTIVE 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 REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR SOFTWARE, AS DETERMINED AT NULLSOFT'S SOLE DISCRETION, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF NULLSOFT TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ADDITIONALLY, THE NULLSOFT GROUP SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF: (i) CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH OR USED WITH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT; OR (ii) THE USE OF PLUG-INS OR SKINS DEVELOPED BY THIRD PARTIES AND MADE AVAILABLE ON NULLSOFT'S WEBSITE FOR USE WITH THE SOFTWARE. 18. EXPORT CONTROLS. Licensee agrees to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export, re-export or import the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. For example, Licensee may not export or re-export any commodities, software, or technical data received from Nullsoft, or any direct product of such commodities, software or technical data, to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. Government unless properly authorized. As applicable, each party shall obtain and bear all expenses and responsibility relating to any necessary licenses and/or exemptions with respect to its own export or re-export of the Software from the U.S. 19. INJUNCTIVE RELIEF. Licensee acknowledges and agrees that, notwithstanding any other provisions of this Agreement, any breach or threatened breach of this Agreement by Licensee shall cause Nullsoft irreparable damage for which recovery of money damages would be inadequate and that Nullsoft therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity. 20. U.S. GOVERNMENT END USERS. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Software with only those rights as set forth herein. 21. THIRD PARTY SERVICES OR PRODUCTS. (a) The Software may contain links to other web sites, resources and advertisers. The Nullsoft Group is not responsible for the availability of these external sites nor does it endorse, or is it responsible for, the aesthetics, appeal, suitability to taste or subjective quality of informational content, advertising, products or other materials made available on or through such external sites. Under no circumstances shall the Nullsoft Group or any of the affiliated providers be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to Licensee in connection with the use of or reliance on any content, goods or services available on such external sites. Licensee should direct any concerns to such external sites' administrator or Webmaster. (b) Licensee agrees and understands that the Software may include from time to time offerings for certain third party services, products or supplemental applications for download or use with the Software ("Supplemental Applications"). Such Supplemental Applications are subject to this Agreement and may be subject to additional terms and conditions or registration requirements. Licensee agrees to abide by these additional terms and further agrees that a violation of those terms shall constitute a breach of this Agreement. (c) Third parties may offer from time to time applications or services to access, "plug-in" or interact with the Software. Licensee's use of such third party applications will be at Licensee's own risk and subject to the terms and conditions of those third parties. NULLSOFT DOES NOT REPRESENT AND WARRANT THAT ACCESS AND USE OF THE SOFTWARE THROUGH OR WITH THESE THIRD-PARTY APPLICATIONS OR THIRD PARTY OFFERINGS WILL BE COMPATIBLE, UNINTERRUPTED, ERROR FREE, WITHOUT DEFECTS OR THAT LICENSEE WILL BE ABLE TO ACCESS OR USE THE SOFTWARE AT ALL TIMES AND LOCATIONS OF ITS CHOOSING. LICENSEE AGREES THAT NULLSOFT IS UNDER NO OBLIGATION TO PROVIDE LICENSEE WITH ANY ERROR CORRECTIONS, UPDATES, UPGRADES, FIXES AND/OR ENHANCEMENTS TO MAKE THE SOFTWARE ACCESSIBLE THROUGH OR COMPATIBLE WITH THESE THIRD-PARTY APPLICATIONS OR THIRD PARTY OFFERINGS. 22. CHOICE OF LAW; VENUE. LICENSEE EXPRESSLY AGREES THAT EXCLUSIVE JURISDICTION FOR ANY CLAIM OR DISPUTE WITH NULLSOFT, NULLSOFTS AFFILIATES, WINAMP, THIS AGREEMENT, OR RELATING IN ANY WAY TO LICENSEES USE OF WINAMP (OR ANY FEATURES THEREOF) RESIDES IN THE FEDERAL OR STATE COURTS LOCATED IN THE COMMONWEALTH OF VIRGINIA AND LICENSEE FURTHER AGREES AND EXPRESSLY CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION IN SUCH COURTS IN CONNECTION WITH ANY SUCH DISPUTE, INCLUDING ANY CLAIM INVOLVING NULLSOFT, THIS AGREEMENT, AND/OR WINAMP (OR ANY FEATURES THEREOF). PLEASE NOTE THAT BY AGREEING TO THE TERMS OF THIS AGREEMENT, LICENSEE IS WAIVING CLAIMS THAT LICENSEE MIGHT OTHERWISE HAVE AGAINST NULLSOFT BASED ON THE LAWS OF OTHER JURISDICTIONS. 23. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of Nullsoft. (b) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (c) If any provision in this Agreement should be held illegal or unenforceable, 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, or Nullsoft may at its option instead terminate this Agreement. (d) 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. (e) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Nullsoft may assign this Agreement to any entity at its sole discretion. (f) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (g) 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. ****************************************************** II. SUPPLEMENTAL TERMS FOR eMusic If you have checked the eMusic Promotional Icon download box in the Download Manager, you agree to the following additional terms. If you do not agree to the following additional terms, return to the Winamp Download Manager and uncheck the eMusic Promotional Icon download box and do not download the eMusic Icon. 1 THIS END USER LICENSE AGREEMENT ("EULA") IS A LEGALLY BINDING AGREEMENT BETWEEN EMUSIC INC. ("EMUSIC") AND YOU ("YOU", "YOUR"). IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS AND CONDITIONS REGARDING YOUR USE OF EMUSIC'S SOFTWARE AND RELATED ICON LINKS PROVIDED HEREUNDER (COLLECTIVELY, THE "eMusic LICENSED PRODUCTS"). BY SELECTING "I ACCEPT", USING THE EMUSIC LICENSED PRODUCTS IN ANY MANNER, OR BY SIGNIFYING YOUR ACCEPTANCE IN ANY OTHER WAY, YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS EULA; AND EXPRESSLY ACKNOWLEDGE AND CONSENT TO THE AUTOMATIC INSTALLATION AND EXECUTION OF THE EMUSIC LICENSED PRODUCTS, WHICH WILL REPRODUCE ONE OR MORE ICONS ON YOUR COMPUTER'S DESKTOP THAT LINK TO INFORMATION ABOUT THE ICONS, SOFTWARE AND/OR A REGISTRATION PAGE FOR EMUSIC'S INTERNET BASED MUSIC SUBSCRIPTION BASED SERVICE ("EMUSIC SERVICE"). IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THE EMUSIC LICENSED PRODUCTS AND YOU MUST DISCONTINUE ANY FURTHER USE THEREOF AND REMOVE THE SAME FROM YOUR COMPUTER USING THE UNINSTALL TOOL INCLUDED WITH YOUR DOWNLOAD OF THE LICENSED PRODUCTS. 2. LICENSE GRANT: Subject to the terms and conditions contained herein, eMusic grants to you a non-exclusive, non-transferable, non-sublicenseable right and license to use the eMusic Licensed Products, solely for your personal use on any desktop or other fixed or portable computer. For purposes of this EULA, the Software is considered to be "in use" when it is loaded into temporary memory (e.g., RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM or other storage device) of such computer. 3. RESTRICTIONS: You may not modify, adapt, translate, reverse engineer, decompile, disassemble the eMusic Licensed Products, in whole or in part, or create derivative works using or based on the eMusic Licensed Products, nor may you copy, distribute, loan, rent, lease, sublicense or transmit all or any portion of the eMusic Licensed Products, nor may you allow others to do so. 4. OWNERSHIP RIGHTS: The eMusic Licensed Products are proprietary to eMusic and protected by United States copyright and other laws, as well as international treaty provisions and you must treat the eMusic Licensed Products as any other copyrighted and legally protected material. As between you and eMusic, eMusic owns all right, title and interest in and to the eMusic Licensed Products including, without limitation, all intellectual and proprietary rights appurtenant thereto and except for the limited license granted to you herein, nothing in this EULA shall be construed to transfer, convey, impair or otherwise adversely affect eMusic's ownership or proprietary rights therein or any other eMusic information or materials, tangible or intangible, in any form and in any medium. eMusic reserves all rights not expressly granted herein in and to all of the foregoing. eMusic has the sole right to obtain, hold and renew in its own name and for its own benefit, all patents, copyrights, registrations and other similar protection in connection with the foregoing and you hereby agree to assign, transfer and convey to eMusic all right, title and interest therein and will cooperate with eMusic and execute all documents necessary to enable eMusic to perfect, preserve, register and record its rights therein. 5. DISCLAIMER OF WARRANTY: THE EMUSIC LICENSED PRODUCTS ARE BEING PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE or arising from a course of dealing or usage of trade. YOU ASSUME THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE EMUSIC LICENSED PRODUCTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EMUSIC DOES NOT WARRANT THAT THE EMUSIC LICENSED PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT YOUR ACCESS TO AND USE OR OPERATION OF THE EMUSIC LICENSED PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, OR OTHERWISE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. 6. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER EMUSIC NOR ITS AFFILIATES OR PROVIDERS (INCLUDING NULLSOFT) SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR YOUR ACCESS TO, USE AND OPERATION OF THE EMUSIC LICENSED PRODUCTS, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT EMUSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. 7. INDEMNITY: You agree to defend, indemnify and hold eMusic, its distributors (including Nullsoft), its affiliates and their respective officers, directors, employees, agents and representatives harmless from and against any liabilities, losses, expenses, costs or damages (including reasonable attorneys' fees, expert fees' and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to any claim or action based upon your breach of the terms and conditions of this EULA. eMusic may, if necessary, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect eMusic's rights or obligations shall be made without eMusic's prior written approval. eMusic reserves the right, at its own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end. 8. GOVERNING LAW AND INTERPRETATION: This EULA and your use of the eMusic Licensed Products, will be interpreted under and governed by the substantive laws of the State of New York, excluding its conflicts-of-law rules. You agree that exclusive jurisdiction and venue of any dispute with or its licensors, or any of their respective affiliates, officers, directors, employees, contractors, agents, representatives or suppliers, arising out of or in any way relating to this EULA shall reside in the federal and state courts situate in the State of New York. You expressly consent to the exercise of personal jurisdiction by such courts and agree that you will not object to jurisdiction of or venue in such courts on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. This EULA may not be modified by anyone except in writing signed by an authorized officer of eMusic. No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this EULA. You may not assign your rights under this EULA without eMusic's prior written permission and any attempt by you to do so shall be void. If any term of this EULA is held invalid, illegal or unenforceable, the remaining portions shall not be affected. Any provision of this EULA which by its nature must survive the termination of this EULA in order to give effect to its meaning shall survive such termination. ********************************************************** III. SUPPLEMENTAL TERMS FOR Gracenote This application contains software from Gracenote, Inc. of Emeryville, California ("Gracenote"). The software from Gracenote (the "Gracenote Client") enables this application to do online disc identification and obtain music-related information, including name, artist, track, and title information ("Gracenote Data") from online servers ("Gracenote Servers") and to perform other functions. You may use Gracenote Data only by means of the intended End-User functions of this application software. You agree that you will use Gracenote Data, the Gracenote Client, and Gracenote Servers for your own personal non-commercial use only. You agree not to assign, copy, transfer or transmit the Gracenote Client or any Gracenote Data to any third party. YOU AGREE NOT TO USE OR EXPLOIT GRACENOTE DATA, THE GRACENOTE CLIENT, OR GRACENOTE SERVERS, EXCEPT AS EXPRESSLY PERMITTED HEREIN. You agree that your non-exclusive license to use the Gracenote Data, the Gracenote Client, and Gracenote Servers will terminate if you violate these restrictions. If your license terminates, you agree to cease any and all use of the Gracenote Data, the Gracenote Client, and Gracenote Servers. Gracenote reserves all rights in Gracenote Data, the Gracenote Client, and the Gracenote Servers, including all ownership rights. You agree that Gracenote, Inc. may enforce its rights under this Agreement against you directly in its own name. The Gracenote Service uses a unique identifier to track queries for statistical purposes. The purpose of a randomly assigned numeric identifier is to allow the Gracenote service to count queries without knowing anything about who you are. For more information, see the web page for the Gracenote Privacy Policy for the Gracenote Service. By using the software, you agree that the Gracenote software may submit a waveform signature to Gracenote. A waveform signature is a distillation of the sound-wave information in the music itself and helps the Gracenote service to identify artist and title information for digital music files. A waveform signature does not contain any information about you or your computer, and computing the waveform signature should have no noticeable effect on the performance of your computer. For more information, see the FAQ (Frequently Asked Questions) page, and the Privacy Policy for the Gracenote Service. The Gracenote Client and each item of Gracenote Data are licensed to you "AS IS". Gracenote makes no representations or warranties, express or implied, regarding the accuracy of any Gracenote Data from in the Gracenote Servers. Gracenote reserves the right to delete Data from the Gracenote Servers or to change Data categories for any cause that Gracenote deems sufficient. No warranty is made that the Gracenote Client or Gracenote Servers are error-free or that functioning of Gracenote Client or Gracenote Servers will be uninterrupted. Gracenote is not obligated to provide you with any new enhanced or additional Data types or categories that Gracenote may choose to provide in the future and is free to discontinue its online service at any time. GRACENOTE DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. GRACENOTE DOES NOT WARRANT THE RESULTS THAT WILL BE OBTAINED BY YOUR USE OF THE GRACENOTE CLIENT OR ANY GRACENOTE CDDB SERVER. IN NO CASE WILL GRACENOTE BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR LOST REVENUES. ********************************************************** IV. SUPPLEMENTAL TERMS FOR WINAMP REMOTE, POWERED BY ORB NETWORKS, INC. YOUR RIGHT TO TEST AND USE THE ORB NETWORKS, INC. SOFTWARE ("ORB SOFTWARE") WHICH POWERS THE BETA VERSION OF WINAMP REMOTE AND THE RELATED SERVICE ("ORB SERVICE") IS SUBJECT TO THE TERMS AND CONDITIONS OF THE FOLLOWING TERMS OF USE (TERMS OF USE). PLEASE READ THEM CAREFULLY BEFORE YOU DOWNLOAD AND/OR INSTALL THE SOFTWARE. By clicking the I Agree button in the installer, downloading, installing, or using the Orb Software or the Orb Service, you agree to be bound by these Terms of Use. If you do not agree to the Terms of Use, do not click the I Agree button and do not use the Orb Software or the Orb Service. You agree that installation or use of the Orb Software signifies that you have read, understood, and agreed to be bound by these Terms of Use. The Orb Software and Orb Service are provided to you under these Terms of Use for your private, non-commercial use only. 1. Description. Winamp Remote is an experimental application that is offered "AS IS," for beta testing only. YOU UNDERSTAND AND AGREE THAT WINAMP REMOTE HAS NOT BEEN MADE AVAILABLE FOR GENERAL PUBLIC RELEASE AND THAT YOU ARE TESTING WINAMP REMOTE AT YOUR SOLE RISK. You should back up all data, files and applications that you may use with Winamp Remote. Winamp has no obligation to offer a commercial version of the product. By electing to download the Orb Software, you agree to provide Winamp with feedback concerning the Orb Software and Orb Service. You agree to abide by these Terms of Use, which governs your use of the Orb Software and Orb Service. Orb provides the Orb Service to you to allow you to access your digital content remotely from a variety of mobile computing devices through the use of the Orb Software. Orb reserves the right to modify these Terms of Use and/or the Orb Service and may discontinue or revise any or all other aspects of the Orb Service at any time. Once you create an account for the Orb Service, you shall receive a password and user name for your account. You are solely and entirely responsible for maintaining the confidentiality of your password. Furthermore, you are solely and entirely responsible for any and all activities which occur under your account. You agree to immediately notify Orb of any unauthorized use of your account or any other breach of security known to you. 2. Grant of License. Subject to these Terms of Use, Orb grants to you a non-exclusive, non-transferable right to (i) use the Orb Software on your personal computer and (ii) use all electronic or written user guides, manuals, literature, drawings, materials and other documentation for and related to the Orb Software generally made available by Orb to end users ("Documentation"), solely during the term of this Agreement. 3. Ownership And Restrictions. These Terms of Use do not constitute a sale of the Orb Software or any copy of the Orb Software. An express condition of these Terms of Use is that Orb and its licensors retain all worldwide ownership of and rights, title and interest in and to the Orb Software, and all copies and portions thereof, the Orb Service and the Documentation, including without limitation, all copyrights, moral rights, trademark rights, trade secret rights and other proprietary rights therein and thereto, regardless of the form or media in or on which the Orb Software, the Orb Service, the Documentation or copies may exist. You may make one (1) copy of the Orb Software solely for backup purposes. You must reproduce and include the copyright, trademark and proprietary notices on the backup copy. Orb reserves all rights not expressly granted to you. This Orb Software and the use of the Orb Service and the Documentation is licensed only to you and may not be transferred to anyone without the prior written consent of Orb. Any authorized transferee of the Orb Software shall agree in writing to be bound by the terms and conditions of these Terms of Use. In no event may you loan, rent, time-share, sublicense, assign, transfer lease, sell or otherwise dispose of the Orb Software on a temporary or permanent basis except as expressly provided herein. These Terms of Use shall benefit Orb and its successors and assigns. You may not modify, adapt, translate, reverse engineer, decompile, disassemble or create derivative works from the Orb Software. All logos and product names appearing on or in connection with the Orb Software or the Orb Service, and any other materials provided with the Orb Software, if any, are proprietary to Orb or its licensors and/or suppliers. You agree never to remove any proprietary notices or product identification labels from the Orb Software or the Documentation, if applicable. You agree to use the Orb Software and the Orb Service in a manner consistent with any and all applicable laws and regulations and you agree that Orb shall have no duty to and shall not investigate your use of the Orb Software and the Orb Service or right to use the Orb Software and the Orb Service. You agree to indemnify Orb against any claims that your use of the Orb Software and/or the Orb Service violates the rights of any third party or any applicable laws and/or regulations of any jurisdictions, except to the extent the Orb Software infringes any patent, copyright or trade secret of a third party. 4. Support. Orb will provide you with limited on-line support for the Orb Software during Orb's regular business hours, available by email at support@orb.com ("On-Line Support"). On-Line Support is available to assist you with limited inquiries related to Orb Software installation and Orb Service operation. On-Line Support is provided to you free of charge and Orb makes no warranties or representations regarding the availability, accuracy or response time of such On-Line Support. Additional information regarding the Orb Software and the Orb Service is available on-line at Orb's knowledge base accessed from within the product interface. 5. Content. You acknowledge and agree that the Orb Software and the Orb Service enable you to personally access and use digital content that you have stored on your personal computer or regularly access on the Web. You further acknowledge and agree that it is your sole responsibility to determine that you have all rights necessary under Copyright law to store and view and use the selected digital content through the use of the Orb Software and the Orb Service, and to ensure that you use the Orb Software and the Orb Service in compliance with any and all restrictions placed on your use of such digital content, whether such restrictions are imposed by the applicable content owners or by your service providers. 6. Warranty Disclaimer. You understand that the Orb Service and the Orb Software are being provided to you on an AS IS basis. Thus, Licensee agrees that neither Orb nor its agents or representatives shall be responsible for loss, destruction, or alteration of programs, content, data and other information resulting from use of the Product. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE ORB SERVICE AND THE ORB SOFTWARE IS AT YOUR OWN RISK. THE ORB SERVICE AND THE ORB SOFTWARE AND ANY SUPPORT ORB SERVICES ARE PROVIDED TO LICENSEE ON AN "AS IS" BASIS AND WITHOUT ANY WARRANTY OF ANY KIND. ORB AND ITS DISTRIBUTORS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. ORB AND ITS DISTRIBUTORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE ORB SERVICE OR THE ORB SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE ORB SERVICE OR THE ORB SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ORB, NULLSOFT, OR THEIR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. 7. Limitation of Liability. IN NO EVENT WILL ORB OR ITS AFFILIATES, SUPPLIERS, LICENSEES, DISTRIBUTORS, AND/OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, COVER, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE ORB SOFTWARE OR THE ORB SERVICE, THE DOCUMENTATION, OR RELATED ON-LINE SUPPORT OR OTHER TECHNICAL SUPPORT, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA OR TRANSMISSIONS, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA, OR COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, ORB'S NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 8. Indemnity. You shall indemnify Orb, its employees, agents and distributors from and against all costs, claims, demands, expenses, fines, penalties and liabilities whatsoever which may be made against, sustained, paid or incurred by Orb, its employees or agents as a direct or indirect result of your breach of this Agreement, negligence, breach of statutory duty or other act or omission. 9. No Export. You acknowledge and agree that the goods, software, and technology subject to this Agreement are subject to the export control laws and regulations of the United States, including but not limited to the Export Administration Regulations ("EAR"), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. You will comply with these laws and regulations. You shall not, without prior U.S. government authorization, export, reexport, or transfer any goods, software, or technology subject to this Agreement, either directly or indirectly, to any country subject to a U.S. trade embargo (currently Cuba, Iran, Libya, North Korea, Sudan, and Syria) or to any resident or national of any such country, or to any person or entity listed on the "Entity List" or "Denied Persons List" maintained by the U.S. Department of Commerce or the list of "Specifically Designated Nationals and Blocked Persons" maintained by the U.S. Department of Treasury. In addition, any software or any technology subject to this Agreement may not be exported, reexported, or transferred to an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons. 10. Term And Termination. These Terms of Use are effective on the date you download or install the Orb Software and with respect to the use of the Orb Software, unless earlier terminated, continues for the duration of Orb's copyright rights in the Orb Software. These Terms of Use will terminate automatically without notice from Orb if you fail to comply with any provision of these Terms of Use. In addition, we may cancel or suspend your registered user account for the Orb Service at any time, without cause and/or without notice. We may terminate and/or suspend your account immediately, without notice, if there has been a violation of these Terms of Use and such other policies and terms posted on the Orb Services. You may terminate these Terms of Use at any time by destroying all copies of the Orb Software. Upon termination of these Terms of Use for any reason, you agree to destroy all copies of the Orb Software. The following Sections shall survive termination of this Agreement for any reason: 3, 9, 10, 11, 12, 13, 14 and 15. 11. Choice Of Law. These Terms of Use shall be governed and construed in accordance with the laws of the United States of America and the State of California as applied to agreements entered into and to be performed entirely within California between California residents. These Terms of Use shall be deemed to have been made and entered into in Alameda County, California. The parties hereby submit to the non-exclusive jurisdiction of, and waive any venue objections against, the United States District Court for the Northern District of California, and the Superior and Municipal Courts of the State of California, Alameda County, in any litigation arising out of or in connection with these Terms of Use. The parties expressly disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. 12. Privacy Policy. Your use of the Orb Service is governed by the Winamp Client Privacy Policy that is available at http://www.winamp.com/legal/privacy 13. Feedback. At Orb's request, you may provide Orb with written or oral report(s) of the results of your evaluation of the Orb Service of the Orb Software, including, but not limited to, a report of any errors which Licensee has discovered in any aspect of the Orb Service of the Orb Software or related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by you to Orb concerning the Orb Software and/or the Orb Service ("Evaluations") will be the property of Orb. You agree to assign, and hereby assigns, all right, title and interest worldwide in the Evaluations, and the related intellectual property rights, to Orb and agrees to assist Orb, at Orb's expense, in perfecting and enforcing such rights. 14. Third Party Orb Software. The Orb Software is distributed with certain third party software applications that are subject to different terms than the license terms set forth above for the Orb Software (Third Party Code) as follows. The Third Party Code consists of the following applications: DScaler, CoreAAC, FFDShow, and Haali Splitter. DScaler, CoreAAC and FFDShow are subject to the GNU General Public License. The source code for the Third Party Code is available at: <http://sourceforge.net/project/showfiles.php?group_id=7420> (for DScaler), <http://coreaac.corecodec.org/downloads.html> (for CoreAAC), and <http://sourceforge.net/projects/ffdshow> (for FFDshow). The full terms of the GNU General Public License are available at <http://www.opensource.org/licenses/gpl-license.php.> The Haali Media Splitter Third Party Code is subject to the following terms: Copyright (c) 2004-2006 Mike Matsnev. All Rights Reserved. Redistribution and use in binary form, without modification, is permitted provided that the following conditions are met: 1. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. 2. Absolutely no warranty of function or purpose is made by the author Mike Matsnev. THIS ORB SOFTWARE IS PROVIDED BY THE AUTHOR ''AS IS'' AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS ORB SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 15. Miscellaneous. You acknowledge that you have read these Terms of Use, understand it and agree to be bound by its terms and conditions. You also agree that these Terms of Use are the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior or contemporaneous oral or written agreements and any other communications between the parties relating to the subject matter of these Terms of Use. No waiver of any right under these Terms of Use shall be deemed effective unless contained in writing and signed by a duly authorized representative of Orb, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under these Terms of Use. If any provision in this Agreement is invalid or unenforceable, that provision shall be reformed to the maximum extent allowed by law to reflect the same economic effect as the invalid or unenforceable provision, and the other provisions of these Terms of Use shall remain in full force and effect. The section headings appearing in this Agreement are for the convenience of the parties and do not define or limit the scope or intent of such sections. No modification of these Terms of Use shall be binding unless it is in writing and signed by authorized representatives of both parties. The English language will be the controlling language of these Terms of Use. All communications and notices given pursuant to these Terms of Use will be in the English language. Should you have any questions concerning this Agreement, please contact Orb in writing at the address given below: Orb Networks 6425 Christie Ave. Suite 300 Emeryville, California 94608 ********************************************************** V. SUPPLEMENTAL TERMS FOR THE WINAMP/AOL TOOLBAR IN ADDITION TO THE TERMS CONTAINED IN THE WINAMP LICENSE AGREEMENT, THE FOLLOWING SUPPLEMENTAL TERMS APPLY TO YOUR INSTALLATION AND USE OF THE WINAMP/AOL TOOLBAR. BY INSTALLING AND/OR USING THE PRODUCT, YOU AGREE ELECTRONICALLY THAT THE WINAMP LICENSE AGREEMENT AS SUPPLEMENTED BY THE FOLLOWING TERMS APPLY TO YOUR USE OF THE WINAMP/AOL TOOLBAR. 1. WEB SITES AND CONTENT. Content that may be accessed through the use of the Winamp/AOL Toolbar ("Toolbar"), including any links to certain web sites and RSS feeds offered with the Toolbar, is the property of its respective owner. Neither AOL Inc. nor Nullsoft (collectively, "AOL") is responsible for such content and AOL makes no representations or warranties regarding the accuracy or reliability of the information included in such content. The content on the linked sites is provided to you for your personal, non-commercial use as a convenience to you. You must agree to abide by the terms and conditions that may apply to any interactive online service that you elect to use with the Toolbar. Some of the services that AOL may offer for use with the Toolbar may require that you register with AOL and obtain a User ID or screen name, which will be subject to separate terms and conditions, which you will have an opportunity to review and approve. 2. PRIVACY POLICY. You consent to the information practices disclosed in the AOL Network Privacy Policy located at http://about.aol.com/aolnetwork/aol_pp (or the AOL Member Privacy Policy located at http://about.aol.com/aolnetwork/mem_policy#2 if you are an AOL member) when you use the AOL Toolbar. 3. SUGGESTIONS. You agree that AOL may use in any manner and without limitation all comments, suggestions, complaints and other feedback you provide relating to the Toolbar. 4. YOUR REPRESENTATIONS. You represent and warrant that you have adequate legal capacity to enter into this Agreement, that you will use the Toolbar only for lawful purposes and that you will not violate the terms of this Agreement. 5. AUTOMATED UPDATES. AOL may deliver to your computer automated updates, upgrades, modifications, and/or patches to address issues such as security, interoperability, and performance (collectively Updates). You may be given the opportunity to choose whether you want all Updates delivered automatically or you would prefer to be notified when a new Update is ready to be installed. You authorize AOL to deliver automatically any Update if we believe it is necessary to provide for the continued functionality of the Toolbar. Your use of the Updates will be governed by this Agreement unless you are asked to agree to new or additional terms and conditions at the time of download or installation. 6. PERFORMANCE AND USAGE INFORMATION. (a) TECHNICAL INFORMATION. Most of the Toolbar software is configured to report back information automatically relating to computer errors arising in connection with use of the Toolbar, without notice to you. Information on your Toolbar configuration settings may be included. This data is sent to AOL to help diagnose performance issues with, and improve, the Toolbar. (b) FEATURE USAGE INFORMATION. The Toolbar may also provide AOL with anonymous information about use of the Toolbars features and buttons. AOL uses this information in the aggregate to determine which Toolbar features and buttons are most popular and useful to its users. (c) ORB SOFTWARE ID. The Toolbar may contain a specific identification number for the purpose of tracking the number of unique instances of the Toolbar in use. (d) PERSONALIZATION. You may be asked to provide AOL with certain information so that we can personalize content presented to you through the Toolbar. For example, you may be asked for your zip code, which could be used to provide you with relevant local weather and/or news reports. 7. THIRD PARTY OFFERINGS. Third parties may from time to time offer applications or services to access, plug-into or interact with the Toolbar. You may only use third-party applications authorized by us for use with the Toolbar. Your use of any third-party applications will be at your own risk and subject to the terms and conditions of those third parties. AOL makes no representations or warranties, express or implied, regarding the third party applications. You agree that AOL is under no obligation to provide you with any error corrections, updates, upgrades, fixes and/or enhancements to make the Toolbar accessible through or compatible with these third party applications. 8. DISCLAIMERS. THE TOOLBAR IS PROVIDED "AS IS" WITH ALL FAULTS. AOL DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES THAT THE TOOLBAR IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. YOU AGREE THAT AOL OFFERS THE TOOLBAR AT NO COST TO YOU AND, THEREFORE, IN CONSIDERATION FOR YOUR ACCESS AND USE OF THE ORB SOFTWARE, YOU AGREE THAT AOL SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES REGARDING THE TOOLBAR, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES TO THE FULL EXTENT PERMITTED BY LAW. 9. TERMINATION. Your license to use the Toolbar terminates immediately if you violate any terms of the Agreement or any terms that apply to the User ID or screen name associated with your use of the Toolbar. 10. INCORPORATION BY REFERENCE. All terms and conditions pertaining to the "Product" and "Basic Product" in the Winamp License Agreement apply to the Toolbar, including without limitation, any disclaimers and limitation of liability, and are incorporated into these supplemental terms by reference. ********************************************************** VI. SUPPLEMENTAL TERMS FOR WINAMP ORGLER APPLICATION Nullsoft offers the optional Orgler plug-in application for Winamp as a tool to enhance your music listening experiences. BY CHECKING THE BOX ON THE LOGIN SCREEN OR BY USING THE PLUG-IN, YOU AGREE TO THESE TERMS. You understand and agree that your use of the plug-in application and Winamp are governed by the Winamp Software Disclosures and End User License Agreement (WINAMP EULA) and the Winamp client privacy policy (which you can review at http://www.winamp.com/legal/privacy). You understand and agree that any information regarding your use of the plug-in application will be collected and used in accordance with Nullsofts Winamp client privacy policy, with the following caveat: this plug-in application tracks your playback activity based on your User ID (defined below), and sends that data to a music database maintained on behalf of Nullsoft by AOL Inc. (AOL) in accordance with the AOL Networks Privacy Policy. The playback data collected may include: artist, album, title, track number, time zone, device type (Winamp). Your User ID will also be collected with your playback data. This plug-in application will have log-in capabilities, it will initially collect your playback activity, and will have preference options to enable or disable the collection of such data, ignore video, and only collect media in your Winamp Media Library. To use this plug-in application after installation, you must obtain a user identification and password (User ID) issued by AOL in order to authenticate your access and use of the plug-in. Your User ID provided by AOL will also allow access to a variety of other services offered by AOL, and are governed by AOLs terms located at http://about.aol.com/aolnetwork/terms_use and privacy policy at http://about.aol.com/aolnetwork/aol_pp. If you create a new AOL account, you will have the opportunity to review and approve AOLs terms and privacy policy when you register for a User ID. IF YOU DO NOT AGREE TO ALLOW NULLSOFT OR AOL TO TRACK AND COLLECT YOUR PLAYBACK ACTIVITY, DO NOT INSTALL THIS PLUG-IN APPLICATION. YOU AGREE THAT YOUR INSTALLATION AND/OR USE OF THIS PLUG-IN APPLICATION SIGNIFIES YOUR AGREEMENT TO THE TERMS OF THIS PLUG-IN APPLICATION TOS END USER LICENSE AGREEMENT AND YOUR CONSENT FOR NULLSOFT OR AOL TO TRACK AND STORE DATA ASSOICATED WITH YOUR PLAYLIST ACTIVITY. The Orgler plug-in application shall be deemed a Basic Product for purposes of the WINAMP EULA, and all disclaimers and limitation of liability set forth in the WINAMP EULA apply to this plug-in application. ********************************************************** VII. SUPPLEMENTAL TERMS FOR BROWSER DETECTION The Software includes plug-ins that will help Internet Explorer and Firefox browsers (Browsers) to detect the presence of the Software on your computer. Your use of the Browsers is governed by the Browsers' respective terms of service. ********************************************************** VIII. SUPPLEMENTAL TERMS FOR OPENCANDY SOFTWARE OpenCandy End User License Agreement January 26, 2010 This OpenCandy software installer uses the OpenCandy network to recommend other software you may find valuable during installation of this software. By proceeding, you agree that OpenCandy may collect and use *NON personally identifiable* information about THIS installation (like: install initiated and completed, operating system and language, and country) as well as whether the software recommendation was accepted or not. Collection of such information by OpenCandy will ONLY occur during this installation and the recommendation process in accordance with OpenCandy's Privacy Policy available at www.opencandy.com/privacy-policy. Your use of OpenCandy and other third party software offers made available via OpenCandy is subject to the OpenCandy terms and conditions and privacy policy and the terms and conditions of the third party software. Should you not want OpenCandy to collect non-personally identifiable information about you, do not download the OpenCandy software. ********************************************************** Last Updated 4/15/ 2010 | |
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