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d) You may only use the Software for your private, non-commercial use. You may not use the Software in any way to provide, or as part of, any commercial servic e or application. Copies of content files, including, but not limited to songs a nd other audio recordings, which are downloaded, converted or copied using the S oftware, and which are protected by the copyright laws or related laws of any ju risdiction, are for your own personal use only and may not be distributed to thi rd parties or performed outside your normal circle of family and social acquaint ances. e) You may not use the Software in an attempt to, or in conjunction with, any de vice, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected b y the copyright laws of any jurisdiction. f) Digital Rights Management Systems ("DRM s") are designed to manage and enforce intellectual property rights in digital content. The Software respects DRM s and does not enable you to download from the Internet content that is protected by D RM. You may not take any action or use the Software to circumvent or defeat the security or content usage rules (including copy prevention) provided or enforced by DRM. g) The Software embodies a serial copying management system required by the laws of the United States. You may not circumvent or attempt to circumvent this sys tem by any means. 2. THIRD PARTY SORTWARE AND PLUG-INS ANY THIRD PARTY SOFTWARE, INCLUDING ANY THIRD PARTY'S PLUG-IN, THAT MAY BE PROVI DED WITH THE SOFTWARE IS INCLUDED FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT, IF AN ELECTRONIC COPY OF SUCH LICENSE AGREEMENT IS INSTALLED IN THE APPROPRIATE RN PRODUCT FOLDER ON YOUR COMPUTER UPON INSTALLATION OF THE SOFTWARE. REALNETWORKS IS NOT RESPONSIBLE FOR ANY THIRD PARTY'S SOFTWARE AND SH ALL HAVE NO LIABILITY FOR YOUR USE OF THIRD PARTY SOFTWARE. 3. AUTOMATIC COMMUNICATIONS FEATURES. a) The Software consists of interactive Internet applications that perform a var iety of communications over the Internet as part of their normal operation. A n umber of communications features are automatic and are enabled by default. By in stalling and/or using the Software, you consent to the Software's communications features. Once you log into the Software, user information including your user id will be sent in communications with RN's servers. This information is used t o access your regular account, premium content, non-premium content, services, f eatures, and other personalized services. RN may match the user id to personally identifiable information in order to provide you with products, services, and s oftware that you're entitled to and to provide you with relevant information. Yo u are responsible for any telecommunications or other connectivity charges incur red through use of the Software. b) AutoUpdate: The RealPlayer, using AutoUpdate, automatically communicates with RN's servers on the Internet to check for updates to RN's and RN partner's soft ware, such as bug fixes, patches, enhanced functions, missing plug-ins and new v ersions. AutoUpdate also has the capability to run independently of RealPlayer t o perform background update checks. RN may download updates during the backgroun d checks, when RealPlayer automatically communicates with RN's servers, when you manually check for updates, or when RealPlayer detects a file it does not suppo rt. AutoUpdate sends information about installed RealNetworks' products and comp onents to the servers to determine upgrade availability. If you prefer to be not
uch content already stored on your computer. 6. TITLE. Title, ownership, rights, and intellectual property rights in and to the Software and Documentation shall remain in RN and/or its suppliers. The Sof tware is protected by the copyright laws of the United States and international copyright treaties. 7. WARRANTIES AND LIABILITIES. (a) For the Pay and Premium versions of the Software, the following terms apply: LIMITED WARRANTY. RN warrants that for a period of ninety (90) days from the da te of acquisition the Software, if operated as directed, will substantially achi eve the functionality described in the Documentation. RN does not warrant howev er that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. (i) No Other Warranties. NO OTHER WARRANTIES: TO THE MAXIMUM EXTENT PERMITTED B Y APPLICABLE LAW RN AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES EITHER EXPRE SS OR IMPLIED INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE, THE ACCOMPANY ING WRITTEN MATERIALS AND ANY ACCOMPANYING HARDWARE. If any modifications are m ade to the Software by you during the warranty period; if the media is subjected to accident abuse or improper use; or if you violate the terms of this License Agreement, this warranty shall immediately terminate. This warranty shall not a pply if the Software is used on or in conjunction with hardware or Software othe r than the unmodified version of hardware and Software with which the Software w as designed to be used as described in the Documentation. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE /JURISDICTION TO STATE/JURISDICTION. (ii) Customer Remedies. RN's sole liability for a breach of this warranty shall be in RN's sole discretion: (i) to replace your defective media; or (ii) to adv ise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set fort h in the Documentation; or (iii) if the above remedies are impracticable, to ref und the license fee, if any, you paid for the Software. Repaired, corrected or replaced Software and Documentation shall be covered by this limited warranty fo r the period remaining under the warranty that covered the original Software or if longer for thirty (30) days after the date RN either shipped to you the repai red or replaced Software or advised you as to how to operate the Software so as to achieve the functionality described in the Documentation, whichever is applic able. Only if you inform RN of the problem with the Software during the applica ble warranty period and provide evidence of the date you acquired the Software w ill RN be obligated to honor this warranty. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WHETH ER IN TORT CONTRACT OR OTHERWISE SHALL RN OR ITS SUPPLIERS OR RESELLERS BE LIABL E TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENT IAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GO ODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMM ERCIAL DAMAGES OR LOSSES EVEN IF RN SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY OTHER PARTY. FURTHER, IN NO EVENT SHALL RN'S LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE LICENSE FEE PAI D TO RN FOR THE SOFTWARE AND DOCUMENTATION. BECAUSE SOME STATES/JURISDICTIONS D O NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDE NTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. (b) For the Free, Trial, Pre-Release, Alpha, and Beta versions of the Software,
the following terms apply: DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY. THE SOFTWARE AND DOCUMENTATION, AR E PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RN FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITA TION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE , AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITT ED BY APPLICABLE LAW, IN NO EVENT SHALL RN BE LIABLE FOR ANY CONSEQUENTIAL, INCI DENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WIT HOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LO SS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEME NT OR THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF RN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RN's TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHA LL NOT EXCEED FORTY DOLLARS ($40.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL D AMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. RN DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH THE SOFTWARE. 8. INDEMNIFICATION. This Software is intended for use only with properly licens ed media, content, and content creation tools. It is your responsibility to asc ertain whether any copyright, patent or other licenses are necessary and to obta in any such licenses to serve and/or create, compress, convert, or download such media and content. You agree to record, convert, play back and download only t hose materials for which you have the necessary patent, copyright and other perm issions, licenses, and/or clearances. You agree to hold harmless, indemnify and defend RN, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to any claims that you have (i) viewed, downloaded, encoded, conver ted, compressed, copied or transmitted any materials (other than materials provi ded by RN) in connection with the Software in violation of another party's right s or in violation of any law, or (ii) violated any terms of this License Agreeme nt. If you are importing the Software from the United States, you shall indemni fy and hold RN harmless from and against any import and export duties or other c laims arising from such importation. 9. TERMINATION. This License Agreement will automatically terminate if you fail to comply with any term hereof. No notice shall be required from RN to effect such termination. You may also terminate this License Agreement at any time by notifying RN in writing of termination. Upon any termination of this License Ag reement, you shall immediately discontinue use of the Software and shall within three (3) days return to RN, or certify destruction of, all full or partial copi es of the Software, documentation and related materials provided by RN. Your ob ligation to pay accrued charges and fees shall survive any termination of this L icense Agreement. 10. NO ASSIGNMENT. This Agreement is personal to you, and may not be assigned w ithout RN's express written consent. In the event that you are an entity that m erges with another entity or are acquired by another entity during the Term, you shall provide written notice of such merger or acquisition not later than the d ate on which any public announcement is made. If RN does not consent to assignm ent of this Agreement to the new or acquiring entity in such merger or acquisiti on, RN may terminate this Agreement on thirty (30) days' written notice. Both p arties shall perform under this Agreement until such termination is effective. 11. TECHNICAL SUPPORT. Technical support for the Software, as made available by RN, is described at RN's technical support website: http://service.real.com/re alplayer. 12. IMPORTANT--MISCELLANEOUS.
a) Arbitration & Jurisdiction. You and RN agree that the exclusive remedy for al l disputes and claims relating in any way to, or arising out of, this Agreement, the Software, or your use of the Software shall be final and binding arbitratio n. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"). The arbitration shall tak e place in the State of Washington. To the fullest extent permitted by law: no arbitration under this License Agreement shall be joined to any other arbitratio n, including any arbitration involving any other current or former licensee of R N; no class arbitration proceedings shall be permitted; no finding or stipulatio n of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless de termined in another proceeding between you and RN); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unle ss determined in another proceeding between you and RN). You and RN must commen ce an arbitration by filing a demand for arbitration with the AAA within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably sho uld know of the act, omission or default giving rise to the claim; and there sha ll be no right to any remedy for any claim not asserted within that time period (If applicable law prohibits a one-year limitations period for asserting claims, the claim must be asserted within the shortest time period in excess of one yea r that is permitted by applicable law.). Your arbitration fees and your share of arbitrator compensation will be limited to those set forth in the AAA's Consume r Rules with the remainder paid by RN. If such costs are determined to be exces sive, RN will pay all arbitration fees and arbitrator compensation. You and RN may litigate in court only to compel arbitration under this Agreement, stay proc eedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). You and RN hereby consent to the exclu sive jurisdiction of the state and federal courts sitting in the State of Washin gton to enforce the provisions of this Section 16 and to resolve any disputes an d claims cognizable in court relating in any way, or arising out of, this Agreem ent, or the Software. The court, not the arbitrator, shall determine the enforc eability of the arbitration agreements contained herein, including the prohibiti on on consolidated arbitrations and class arbitration. This Agreement and all d isputes and claims relating in any way to, or arising out of, this Agreement or the Software shall be governed by the laws of the State of Washington and the Fe deral Arbitration Act. b) Complete Agreement. This Agreement shall constitute the complete and exclusi ve agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by RN or n ot. The acceptance of any purchase order you place is expressly made conditiona l on your consent to the terms set forth herein. The terms and conditions conta ined in this Agreement may not be modified by you except in a writing duly signe d by you and an authorized representative of RN. If any provision of this Agree ment is held to be unenforceable for any reason, such provision shall be reforme d only to the extent necessary to make it enforceable, and such decision shall n ot affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This Agreement will no t be governed by the United Nations Convention of Contracts for the Internationa l Sale of Goods, the application of which is hereby expressly excluded. Copyright (c) 1995-2012 RealNetworks, Inc. and/or its suppliers and licensors. 2601 Elliott Ave., Suite 1000, Seattle, Washington 98121 U.S.A. All rights rese rved. RealPlayer, RealNetworks, RealPlayer Plus, are registered trademarks or t rademarks of RealNetworks, Inc. Last modified: November 26, 2012
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