LIMITED USE SOFTWARE LICENSE AGREEMENT
This
Limited Use Software License Agreement (the "Agreement") is a legal
agreement between you, the end-user, and Id Software, Inc. ("ID") and
Activision, Inc. (“Activision”). BY CONTINUING THE INSTALLATION OF THE FULL VERSION GAME PROGRAM ENTITLED
QUAKE III ARENA (THE “SOFTWARE”),
BY LOADING OR RUNNING THE SOFTWARE, OR BY PLACING OR COPYING THE SOFTWARE ONTO
YOUR COMPUTER HARD DRIVE, COMPUTER RAM OR OTHER STORAGE, YOU ARE AGREEING TO BE
BOUND BY THE TERMS OF THIS AGREEMENT.
1.
Grant of License for Software.
Subject to the terms and provisions of this Agreement and so long as you
fully comply at all times with this Agreement, ID grants to you the
non-exclusive and limited right to use the Software in executable or object code
form. The term “Software”
includes all elements of the Software such as data files, images appearing in
the Software, and screen displays. You
are not receiving any ownership or proprietary right, title or interest in or to
the Software or the copyrights, trademarks, or other rights related thereto.
For purposes of the first sentence of this section, "use" means
loading the Software into RAM and/or onto computer hard drive, as well as
installation of the Software on a hard disk or other storage device, and means
the uses permitted in sections 2. and 4. hereinbelow. You agree that the Software will not be shipped, transferred
or exported into any country in violation of the U.S. Export Administration Act
(or any other law governing such matters) by you or any one at your direction
and that you will not utilize and will not authorize anyone to utilize, in any
other manner, the Software in violation of any applicable law.
The Software shall not be exported or re-exported into (or to a national
or resident of) any country to which the U.S. has embargoed goods or to anyone
or into any country who/which are prohibited, by applicable law, from receiving
such property.
2.
Permitted New Creations.
Subject to the terms and provisions of this Agreement and so long as you
fully comply at all times with this Agreement, ID grants to you the
non-exclusive and limited right to create for the Software (except any Software
code) your own modifications (the “New Creations”) which shall operate only
with the Software (but not any demo, test or other version of the Software).
ID reserves all rights not granted in this Agreement, including, without
limitation, all rights to ID’s trademarks. You may include within the New
Creations certain textures and other images (the “ID Images”) from the
Software. You shall not create any
New Creations which infringe against any third party right or which are
libelous, defamatory, obscene, false, misleading, or otherwise illegal or
unlawful. You agree that the New Creations will not be shipped, transferred or
exported into any country in violation of the U.S. Export Administration Act (or
any other law governing such matters) by you or anyone at your direction and
that you will not utilize and will not authorize anyone to utilize, in any other
manner, the New Creations in violation of any applicable law.
The New Creations shall not be downloaded or otherwise exported or
re-exported into (or to a national or resident of) any country to which the U.S.
has embargoed goods or to anyone or into any country who/which are prohibited,
by applicable law, from receiving such property.
You shall not rent, sell, lease, lend, offer on a pay-per-play basis or
otherwise commercially exploit or commercially distribute the New Creations. You are only permitted to distribute, without any cost or
charge, the New Creations to other end-users so long as such distribution is not
infringing against any third party right and is not otherwise illegal or
unlawful. As noted below, in the
event you commit any breach of this Agreement, your license and this Agreement
shall automatically terminate, without notice.
You hereby agree to indemnify, defend and hold harmless ID and Activision
and ID’s and Activision’s respective officers, employees, directors, agents,
licensees (excluding you), sub-licensees (excluding you), successors and assigns
from and against all losses, lawsuits, damages, causes of action and claims
relating to and/or arising from the New Creations or the distribution or other
use of the New Creations or relating to and/or arising from your breach of this
Agreement. Your obligations set
forth in the immediately preceding sentence shall survive the cancellation or
termination of this Agreement.
3.
Prohibitions with Regard to Software. You, whether directly or indirectly, shall not do any of the following acts:
a. rent the Software;
b. sell the Software;
c. lease or lend the Software;
d. offer the Software on a pay-per-play basis;
e. distribute the Software by any means, including, but not limited to,
Internet or other electronic distribution, direct mail, retail, mail order or
other means;
f. in any other manner and through any medium whatsoever commercially
exploit the Software or use the Software for any commercial purpose;
g. disassemble, reverse engineer, decompile, modify (except as permitted
by section 2. hereinabove) or alter the Software;
h. translate the Software;
i. reproduce or copy the Software (except as permitted by section 4.
hereinbelow);
j. publicly display the Software; or
k. prepare or develop derivative works based upon the Software.
4.
Permitted Copying. You may make only
the following copies of the Software:
(i) you may copy the Software from the CD ROM which you purchase onto
your computer hard drive; (ii) you may copy the Software from your computer hard
drive into your computer RAM; and (iii) you may make one (1) “back up” or
archival copy of the Software on one (1) hard disk.
5.
Intellectual Property Rights.
Certain printed materials (the “Printed Materials”) accompany the
Software. The Software and the Printed Materials
and all copyrights, trademarks and all other conceivable intellectual
property rights related to the Software and
the Printed Materials are owned by ID and are protected by United States
copyright laws, international treaty provisions and all applicable law, such as
the Lanham Act. You must treat the
Software and the Printed Materials like any other copyrighted material, as
required by 17 U.S.C., §101 et seq. and other applicable law.
You agree to use your best efforts to see that any user of the Software
licensed hereunder, the Printed Materials or the New Creations complies with
this Agreement. You agree that you
are receiving a copy of the Software and the Printed Materials by license only
and not by sale and that the “first sale” doctrine of 17 U.S.C. §109 does
not apply to your receipt or use of the Software or the Printed Materials. This
section 5. shall survive the cancellation or termination of this Agreement.
6.
No ID Warranties. ID DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY
WARRANTY OF NON-INFRINGEMENT, WITH RESPECT TO THE SOFTWARE, THE PRINTED
MATERIALS AND THE ID IMAGES. ID
DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR
ERROR FREE OR THAT THE SOFTWARE WILL MEET YOUR SPECIFIC REQUIREMENTS.
ADDITIONAL STATEMENTS, WHETHER ORAL OR WRITTEN, DO NOT CONSTITUTE
WARRANTIES BY ID AND SHOULD NOT BE RELIED UPON.
This section 6. shall survive the cancellation or termination of this
Agreement.
7.
Limited Activision Warranty.
Activision warrants to the original consumer purchaser of the Software
that the recording medium on which the Software is recorded will be free from
defects in material and workmanship for 90 days from the date of purchase.
If the recording medium is found defective within 90 days of original
purchase, Activision agrees to replace, free of charge, any Software discovered
to be defective within such period upon its receipt of the Software, postage
paid, with the proof of the date of purchase, as long as the Software is still
being manufactured by Activision. In
the event that the Software is no longer available, Activision retains the right
to substitute a similar game program of equal or greater value.
This warranty is limited to the recording medium containing the Software
as originally provided by Activision and is not applicable to normal wear and
tear. This warranty shall not be
applicable and shall be void if the defect has arisen through abuse,
mistreatment or neglect. EXCEPT AS SET FORTH
ABOVE, THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL OR
WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND NO OTHER REPRESENTATIONS OR
CLAIMS OF ANY KIND SHALL BE BINDING ON OR OBLIGATE ACTIVISION.
When
returning the Software for warranty replacement, the original Software disks
must be sent only in a protective packaging and include:
(1) photocopy of your dated sales receipt; (2) your name and return
address typed or clearly printed; (3) a brief note describing the defect, the
problem(s) you are encountering and the system on which you are running the
Software; (4) if you are returning the Software after the 90-day warranty
period, but within one year after the date of purchase, please include check or
money order for $10 U.S. (A$17 for Australia, or £10.00 for Europe) currency
per CD or floppy disk replacement. Note:
Certified mail recommend.
In the U.S.
send to
Warranty Replacements
Activision, Inc.
P.O. Box 67713
Los Angeles, CA 90067
In Europe send to:
Activision
Gemini House
133 High Street
Yiewsley
West Drayton
Middlesex UB7 7QL
United Kingdom
In Australia
and Asia Pacific territories send to:
Warranty
Replacements
Activision
P.O. Box 873
Epping, NSW 2121
Australia
8.
Governing Law, Venue, and Liability Limitation.
This
Agreement shall be construed in accordance with and governed by the applicable
laws of the State of Texas and applicable United States federal law. Copyright and other proprietary matters will be governed by
applicable United States laws and international treaties.
Except as set forth below, exclusive venue for all litigation regarding
this Agreement shall be in Dallas County, Texas and you agree to submit to the
jurisdiction of the courts in Dallas, Texas for any such litigation. Exclusive
venue for all litigation involving Activision, but not involving ID, with regard
to this Agreement shall be in Los Angeles County, California and you agree to
submit to the jurisdiction of the courts in Los Angeles, California for any such
litigation. You agree that your
unauthorized use of the ID Images, the Printed Materials, or the Software, or
any part thereof, may immediately and irreparably damage ID such that ID could
not be adequately compensated solely by a monetary award and that at ID’s
option ID shall be entitled to an injunctive order, in addition to all other
available remedies including a monetary award, appropriately restraining and/or
prohibiting such unauthorized use without the necessity of ID posting bond or
other security.
IN ANY CASE, ID, ACTIVISION, AND ID'S AND ACTIVISION’S RESPECTIVE
OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, LICENSEES (EXCLUDING YOU), SUBLICENSEES
(EXCLUDING YOU), SUCCESSORS OR ASSIGNS SHALL NOT BE LIABLE FOR LOSS OF DATA,
LOSS OF PROFITS, LOST SAVINGS, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT,
PUNITIVE OR OTHER SIMILAR DAMAGES ARISING FROM ANY ALLEGED CLAIM FOR BREACH OF
WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT PRODUCT
LIABILITY, OR OTHER LEGAL THEORY EVEN IF ID, ACTIVISION
OR THEIR RESPECTIVE AGENT(S) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR EVEN IF SUCH DAMAGES ARE FORESEEABLE, OR LIABLE FOR ANY CLAIM BY ANY
OTHER PARTY. Some jurisdictions do not allow the exclusion or limitation
of incidental or consequential damages, so the above limitation or exclusion may
not apply to you. This section 8.
shall survive the cancellation or termination of this Agreement.
9.
U.S. Government Restricted Rights. To the extent applicable,
the United States Government shall only have those rights to use the Software
and the Printed Materials as expressly stated and expressly limited and
restricted in this Agreement, as provided in 48 C.F.R. §§ 227.7201 through
227.7204, inclusive.
10.
General Provisions. Neither this Agreement nor any part or portion hereof shall
be assigned or sublicensed by you. ID
and Activision each may assign its respective rights under this Agreement in the
assigning party’s sole discretion. Should
any provision of this Agreement be held to be void, invalid, unenforceable or
illegal by a court of competent jurisdiction, the validity and enforceability of
the other provisions shall not be affected thereby.
If any provision is determined to be unenforceable by a court of
competent jurisdiction, you agree to a modification of such provision to provide
for enforcement of the provision's intent, to the extent permitted by applicable
law. Failure of ID or Activision to
enforce any provision of this Agreement shall not constitute or be construed as
a waiver of such provision or of the right to enforce such provision.
Immediately upon your failure to comply with or breach of any term or
provision of this Agreement, YOUR LICENSE
AND THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE, WITHOUT NOTICE,
AND ID AND ACTIVISION MAY PURSUE ALL RELIEF AND REMEDIES AGAINST YOU
WHICH ARE AVAILABLE UNDER APPLICABLE LAW AND/OR THIS AGREEMENT.
In the event this Agreement is terminated, you shall have no right to use
the Software, the Printed Materials or the New Creations, in any manner, and you
shall immediately destroy all copies of the Software, the Printed Materials and
the New Creations in your possession, custody or control.