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unmodified Software will substantially
conform to the Documentation and be free
of physical defects, when properly used
on the appropriate equipment. YesVideo
does not warrant that the Software will meet
Customer’s requirements or that operation
of the Software will be uninterrupted or
error-free. This warranty does not cover
damage caused by improper use or neglect.
The Technology is furnished “AS IS” and
without warrant as to the performance or
results that customer may obtain by using
the Technology. To obtain the warranty
service during the thirty day warranty
period Customer may return the defective
Technology with a description of the Problem
to YesVideo. The defective Technology will be
replaced during this period at no additional
charge.
3.2 No Other Warranties. This limited warranty
states YesVideo’s sole obligation, and
Customer’s exclusive remedy if the Software
does not conform to the Documentation.
Except as specified in this Software
License Agreement, YesVideo makes no
express, implied or statutory warranties
to Customer and disclaims all warranties
of merchantability, fitness for a particular
purpose and non infringement of third party
rights. No other person is authorized to
make written or oral warranties on behalf of
YesVideo. If local law precludes the exclusion
of implied warranties, such exclusion may not
apply to customer.
4.0 LIMITATION OF LIABILITY. YesVideo
will have no liability to Customer for any
indirect, incidental, special, exemplary or
consequential damages (including but not
limited to lost profits or loss of data or use),
whether based in contract, tort, strict liability
or any other legal theory, even if YesVideo
has been advised of the possibility of or has
knowledge of the potential loss or damages.
No action, regardless of form, shall be
brought by Customer against YesVideo more
than one (1) year after the cause of the
action has occurred. If the above exclusion
of incidental and consequential damages is
precluded by local laws, such exclusion may
not apply to Customer.
8.5.0 UNITED STATES GOVERNMENT
PURCHASES. The Software and
Documentation are “commercial computer
software” and “commercial computer
software documentation,” respectively, as
such terms are used in 48 C.F.R. 12.212 of
the Federal Acquisition Regulations (“FAR”)
and its successors and 48 C.F.R. 227.7202-
1 through 227.7202-4 (June 1995) of the
Department of Defense FAR Supplement
and its successors. All U.S. government
Customers acquire the Software and the
Documentation with only those rights set forth
in this Agreement.
6.0 GENERAL PROVISIONS.
6.1 Notices. Any notice required or permitted by
this Agreement shall be in writing and shall
be delivered as follows with notice deemed
given as indicated: (i.) by personal delivery
when delivered personally; (ii.) by overnight
courier upon written verification of receipt;
(iii.) by telecopy or facsimile transmission
upon acknowledgment of receipt of electronic
transmission; or (iv.) by certified or registered
mail, return receipt requested, upon
verification of receipt. Notice shall be sent
to the addresses of each party’s corporate
headquarters, or such other address as either
party may specify in writing.
6.2 Assignment and Successors. This
Agreement and the Technology may not be
transferred, sublicensed, sold, or otherwise
transferred by Customer without the prior
written consent of YesVideo. This Agreement
will bind and inure to the successors and
assigns of Customer and YesVideo.
6.3 Disputes. This Agreement is governed by
the laws of the State of California, without
application of the principles of conflicts of
laws. The United Nations Convention on
Contracts for the International Sale of Goods
shall not apply to this Agreement. In the event
of a dispute, the prevailing party is entitled
to recover reasonable legal fees and court
costs.
9.7 Interpretation of Agreement. Neither the
failure nor any delay of YesVideo to exercise
a right, remedy or privilege under this
Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of
a right, remedy or privilege by YesVideo
preclude any further exercise of the same.
The waiver by either party of a breach of or
right under this Agreement will not constitute
a waiver of any other breach or right. In the
event that any provision of this Agreement is
held to be invalid, illegal or unenforceable,
the remaining provisions will continue in
full force and effect. This Agreement may
only be amended, modified or waived by
written documents signed by authorized
representative of YesVideo. This Agreement
is the complete agreement between the
parties regarding this subject matter and
supersedes all previous or contemporaneous
agreements, proposals and communications,
written and oral.
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