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HTC END USER LICENSE AGREEMENT
HTC Sync Manager
BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”). IF YOU DO NOT AGREE, DO NOT INSTALL, COPY OR USE THE SOFTWARE. OTHERWISE, CLICK TO INDICATE THAT YOU ACCEPT THE TERMS.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IF YOU ARE LOCATED IN THE UNITED STATES PLEASE REVIEW SECTION 11.
This Agreement is between the HTC Corporation (or based on where you live, one of its affiliates) and you (an individual) for the HTC Sync Manager software that accompanies this Agreement, including all associated media, printed or electronic documentation, updates, and support services for the software, unless other terms accompany those items (collectively, the “Software”). You and HTC collectively are referred to as “We”.
. During the term of this Agreement and dependant upon your full compliance with all the terms and conditions of this Agreement, HTC grants to you a personal, non-transferable, non-exclusive license to install and use the Software in object code form for non-commercial purposes on a reasonable number of personal computers owned by you and that you use to exchange data (information, files, or content) with portable devices manufactured by HTC that include HTC’s Software. You may also keep one (1) additional copy of the Software solely for backup purposes.
. The license granted in Section 1 is conditioned upon your compliance with the following limitations. You are not permitted to:
a) work around any technical limitations in the Software or to use the Software in an attempt to, or in conjunction with any device, program or service designed to, circumvent technical measures employed to control access to, or the rights in, a content file or other work;
b) reverse engineer, decompile, decipher, disassemble or otherwise attempt to access source code of the Software, except and only to the extent that applicable law expressly permits, despite this limitation;
c) publish, rent, lease, lend, or sublicense the Software;
d) distribute, transfer, disclose or otherwise provide the Software to any third party;
e) modify or make any derivative works of the Software, in whole or in part;
f) remove any proprietary notices or labels on the Software or any copy thereof;
g) use the Software for any commercial purpose;
h) use the Software to infringe the rights of HTC, its affiliates, or any third party or in any way that does not comply with all applicable laws; or
i) make any use of the Software in any manner not permitted by this Agreement.
RESERVATION OF RIGHTS AND OWNERSHIP
. HTC, its affiliates and its suppliers own the title, copyright, and other intellectual property rights to the Software and reserve all rights not expressly granted to you in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties.
. Because this Software is given “as is,” HTC may not provide support services for it. If HTC does provide updates, supplements, add-on components or any Internet-based service component to the Software after the date you obtain your initial copy of the Software (collectively, “Updates”), this Agreement will apply to the Updates. If HTC provides additional terms along with any Update, those terms will apply to the Update. HTC reserves the right to discontinue your access to any Internet-based service provided or made available to you through use of the Software. HTC may, at its sole discretion, release subsequent versions of the Software and require you to obtain and use the most current version.
. HTC may automatically download firmware and Software upgrades to your device(s) to update, enhance, protect, or further improve your device(s) and applications. For example, the firmware for your device(s) and HTC Software features like those described below are enabled by default to connect via the Internet to servers on the Internet and communicate with your computer and other device(s) automatically, without separate action by you. By using the Software and your device(s), you consent to these upgrades and the operation of these features.
. The Software settings may allow you to choose to have the Software automatically update the content and other information (such as your music, photos, contacts, calendar, bookmarks, and documents etc.) on your device(s) when your device(s) connect (either via wired or wireless connection) to your computer. If you choose to have the Software automatically update the content and other information on your device(s), you agree that HTC and its suppliers and content providers may download content and other information to your device(s).
. You agree that Software may automatically communicate with HTC and its suppliers’ servers on the Internet to check for Updates to the Software. You agree that HTC may notify you when Updates are available. If you indicate that you want to receive Update(s), you agree that HTC or its suppliers may download Update(s) and install them as part of the Software.
. The Software will check HTC’s server for firmware updates against your device(s) which is currently connected or was connected to your computer before. If any updates were available, user would be allowed to update the firmware of the device(s) via the Software.
. The Software setting may allow you to backup personal data on the device(s) (such as your music, photos, contacts, calendar, bookmarks, and documents etc.), and store them onto a local drive of the computer connected.
. The Software setting may allow you to restore your personal data (such as your music, photos, contacts, calendar, bookmarks, and documents etc.) from a chosen backup file stored on your computer.
. This Agreement will automatically terminate upon your breach of any of the terms and conditions of this Agreement. If terminated, you must immediately destroy all copies of the Software, and the following Sections of this Agreement will survive: Sections 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16.
DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SUPPORT SERVICES (IF ANY) ARE PROVIDED AS IS AND WITH ALL FAULTS. HTC AND ITS AFFILIATES AND SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF TITLE, NON-INFRINGEMENT, CORRESPONDENCE TO DESCRIPTION, LACK OF VIRUSES OR BUGS, ACCURACY, OR COMPLETENESS OF RESPONSES OR RESULTS WITH REGARD TO THE SOFTWARE OR SUPPORT SERVICES, OR THAT THE SOFTWARE WILL OPERATE OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND SUPPORT SERVICES (IF ANY) REMAINS WITH YOU. YOUR ACCESS AND USE OF THE SOFTWARE ARE AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER SYSTEMS AND LOSS OF DATA IN CONNECTION WITH THE SOFTWARE.
LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. IN NO EVENT WILL HTC OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR, AND YOU CANNOT RECOVER, ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST DATA, DAMAGES TO YOUR COMPUTER OR OTHER SYSTEMS, OR LOSS OF GOODWILL) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, CONTENT (INCLUDING CODE) PROVIDED BY THIRD PARTIES, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA, OR OTHERWISE ARISING OUT OF AND RELATING TO THE SOFTWARE, SUPPORT SERVICES OR THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE REMEDIES OTHERWISE PROVIDED UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
HTC’S AND ITS AFFILIATES’ AND SUPPLIERS’ ENTIRE LIABILITY UNDER THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER WILL BE LIMITED TO THE ACTUAL DIRECT DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SOFTWARE UP TO US$5.00. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT MORE THAN ONE YEAR AFTER YOU HAVE KNOWLEDGE OF THE OCCURRENCE WHICH GIVES RISE TO THE CAUSE OF ACTION.
THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU BECAUSE YOUR COUNTRY MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE.
. You agree to hold harmless, indemnify and defend HTC, 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, compressed, copied or transmitted any materials (other than materials provided by HTC) in connection with the Software in violation of another party's rights or in violation of any law, or (ii) violated any terms of this Agreement . If you are importing the Software from the United States or European Union, you will indemnify and hold HTC and its affiliates harmless from and against any import and export duties or other claims arising from that importation.
. The Software was designed for systems that do not require fail-safe performance. You may not use the Software in any device or system in which a malfunction of the Software would result in foreseeable risk of injury or death to any person. This includes operation of nuclear facilities, aircraft navigation, or communication systems and air traffic control.
GOVERNING LAW AND JURISDICTION FOR RESOLVING DISPUTES
. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
North and South America
. If you acquired the Software in North or South America, you are contracting with HTC America, Inc. and Washington state law governs the interpretation of this Agreement and applies to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims under state consumer protection laws, unfair competition laws, and in tort will be governed by of the state where you live in the U.S.A., or, if you live outside of the U.S.A. (but within North or South America), the laws of the country where you live.
IF YOU ACQUIRED THE SOFTWARE IN THE U.S.A., WE EACH AGREE THAT ALL CLAIMS AND DISPUTES ARISING OUT OF OR RELATED TO THE SOFTWARE OR THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US, WILL BE RESOLVED IN KING COUNTY, WASHINGTON BY BINDING ARBITRATION BY A SINGLE NEUTRAL ARBITRATOR OR, IF THE CLAIM QUALIFIES, IN SMALL CLAIMS COURT. WE EACH ALSO AGREE THAT THE AGREEMENT AFFECTS INTERSTATE COMMERCE SO THE FEDERAL ARBITRATION ACT APPLIES INCLUDING WITH RESPECT TO ANY QUESTION OF WHETHER A CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION (DESPITE THE CHOICE OF GOVERNING LAW IN THIS SECTION). WE EACH AGREE WE WILL ONLY PURSUE ARBITRATION ON AN INDIVIDUAL BASIS AND WILL NOT PURSUE ARBITRATION IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE BASIS, REGARDLESS OF THE APPLICATION OF PROCEDURAL RULES BY ANY ARBITRATOR. IF ANY COURT OR ARBITRATOR HOLDS THAT THE CLASS ACTION WAIVER IS UNENFORCEABLE, THEN THE DISPUTE MUST BE BROUGHT IN A STATE OR FEDERAL COURT IN KING COUNTY, WASHINGTON. WE EACH ALSO AGREE THAT FOR ARBITRATED CLAIMS THE ARBITRATOR’S AWARD WILL BE FINAL AND BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION.
For each dispute or claim, we will each give the other the opportunity to resolve it by sending the other a written description along with relevant documents, supporting information, and the proposed resolution. Notice to HTC America, Inc. will be sent to the contact in Section 16. We will attempt to notify you in writing if we have your email or mailing address. If we do not have your address we will post a notice in the legal notices section on our web site at
. We each agree to negotiate disputes and claims in good faith. If we are unable to resolve the dispute or claim within 60 days after we receive your notice or we mail or post our notice to you, we each may pursue the dispute or claim in arbitration or, if the claim qualifies, in small claims court. If you want to arbitrate, to begin arbitration you must send a letter requesting arbitration and describing your claim to the contact listed for HTC America, Inc. in Section 16. The American Arbitration Association (AAA) will arbitrate all disputes and the AAA's Supplementary Procedures for Consumer-Related Disputes will apply. We each are responsible for our own respective costs relating to the arbitration, except that HTC America, Inc. will pay the arbitration administrative or filing fees, including the arbitrator fees. An arbitrator may award on an individual basis any relief authorized by law, including injunctive or declaratory relief and attorneys' fees.
Europe, Middle East, and Africa
. If you acquired the Software in Europe, the Middle East or Africa, you are contracting with HTC Europe Co., Ltd. and the laws of England and Wales govern the interpretation of this Agreement and apply to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims under consumer protection laws, unfair competition laws, and in tort will be governed by the laws of the country where you live. You irrevocably agree to the exclusive jurisdiction and venue of the courts in London, England, and Wales for any disputes arising out of or in connection with this Agreement.
Australia, New Zealand, and Asia (except for the Middle East)
. If you acquired the Software in Australia, New Zealand, or Asia (except for the Middle East), you are contracting with HTC Corporation and the laws of Taiwan govern the interpretation of this Agreement and apply to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims under consumer protection laws, unfair competition laws, and in tort will be governed by the laws of the country where you live. You irrevocably designate the Taipei District Court as the court of first instance having jurisdiction over any disputes arising out of or in connection with this Agreement.
. This Agreement does not change your rights under the laws of the country in which you reside if the laws of your country do not permit it to legally change your rights. You may have rights under the laws of the country in which you reside that are in addition to, or different from, the rights set forth in this Agreement.
COMPLIANCE WITH LAW; EXPORT REGULATIONS
. You will comply with all national and international laws, rules and regulations that apply to the Software and your use of the Software, including the U.S. Export Administration Regulations (to which the Software is subject), as well as end-user, end-use, and destination restrictions issued by U.S. or other governments. You acknowledge that the Software is of U.S. origin.
. The section titles in this Agreement are used solely for the parties’ convenience and have no legal or contractual significance. HTC’s failure to act with respect to a breach by you does not waive its rights to act with respect to subsequent or similar breaches. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion. If a court of competent jurisdiction holds any term, covenant, or restriction of this Agreement to be illegal, invalid, or unenforceable, the remaining terms, covenants, and restrictions will remain in full force and effect and will in no way be affected, impaired, or invalidated. You may not assign, transfer, or sublicense your rights (if any) under this Agreement. This Agreement will be binding upon all of HTC’s successors and assigns.
. This Agreement, and any additional terms provided with any Updates, are the entire agreement for the Software. Internet-based services and support services (if any) may be subject to additional terms.
GRACENOTE® END USER LICENSE AGREEMENT
This Software contains software from Gracenote, Inc. of Emeryville, California (“Gracenote”). The software from Gracenote (the “Gracenote Software”) enables this Software to perform disc and/or file identification and obtain music-related information, including name, artist, track, and title information (“Gracenote Data”) from online servers or embedded databases (collectively, “Gracenote Servers”) and to perform other functions. You may use Gracenote Data only by means of the intended End-User functions of this Software.
You agree that you will use Gracenote Data, the Gracenote Software, and Gracenote Servers for your own personal non-commercial use only. You agree not to assign, copy, transfer or transmit the Gracenote Software or any Gracenote Data to any third party. YOU AGREE NOT TO USE OR EXPLOIT GRACENOTE DATA, THE GRACENOTE SOFTWARE, OR GRACENOTE SERVERS, EXCEPT AS EXPRESSLY PERMITTED HEREIN.
You agree that your non-exclusive license to use the Gracenote Data, the Gracenote Software, 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 Software, and Gracenote Servers. Gracenote reserves all rights in Gracenote Data, the Gracenote Software, and the Gracenote Servers, including all ownership rights. Under no circumstances will Gracenote become liable for any payment to you for any information that you provide. You agree that Gracenote, Inc. may enforce its rights under this Agreement against you directly in its own name.
The Gracenote Software 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 Software or Gracenote Servers are error-free or that functioning of Gracenote Software or Gracenote Servers will be uninterrupted. Gracenote is not obligated to provide you with new enhanced or additional data types or categories that Gracenote may provide in the future and is free to discontinue its services 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 SOFTWARE OR ANY GRACENOTE SERVER. IN NO CASE WILL GRACENOTE BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR LOST REVENUES.
MP3 and mp3PRO
Supply of this product only conveys a license for private, non-commercial use and does not convey a license nor imply any right to use this product in any commercial (i.e. revenue-generating) real time broadcasting (terrestrial, satellite, cable, and/or any other media), broadcasting / streaming via Internet, intranets and/or other networks or in other electronic content distribution systems, such as pay-audio or audio-on-demand applications. An independent license for such use is required. For details, please visit www.mp3licensing.com.
CONTACT INFORMATION. If you have any questions about this Agreement please direct all notices and correspondence to:
If to HTC America, Inc.
Attn: VP of Legal Affairs
13920 SE Eastgate Way, Suite 400
Bellevue, WA 98005
With a copy to: HTC Corporation
Attn: General Counsel
No. 23, Xinghua Rd.,
Taoyuan City, Taoyuan County 330
If to HTC Corporation
Attn: General Counsel
No. 23, Xinghua Rd.,
Taoyuan City, Taoyuan County 330
If to HTC Europe Co., Ltd.
Salamanca, Wellington Street
Slough, Berkshire SL1 1YP,
With a copy to: HTC Corporation
Attn: General Counsel
No. 23, Xinghua Rd.,
Taoyuan City, Taoyuan County 330
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