BETA TEST END USER LICENSE AGREEMENT PLEASE READ THIS AGREEMENT CAREFULLY BETA TEST END USER SOFTWARE LICENSE AGREEMENT THIS IS A LICENSE AGREEMENT ("AGREEMENT") BETWEEN PLAYFIRST, INC. ("LICENSOR"), AND YOU ("LICENSEE" OR "YOU") FOR YOUR LIMITED USE OF THE ACCOMPANYING SOFTWARE AND USER DOCUMENTATION (THE "SOFTWARE"). LICENSOR IS WILLING TO GRANT YOU THE LICENSE TO USE THE SOFTWARE ACCORDING ONLY ON THE CONDITION THAT YOU ACCEPT ALL TERMS IN THIS AGREEMENT. BY CLICKING ON THE "YES" OR "ACCEPT" BUTTON BELOW OR OTHERWISE COMPLETING THE INSTALLATION PROCESS, YOU ACKNOWLEDGE THAT YOU ARE OF THE AGE OF MAJORITY AND HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, LICENSOR IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU SHOULD CLICK ON THE "NO" OR "DO NOT ACCEPT" BUTTON BELOW OR OTHERWISE DISCONTINUE THE INSTALLATION PROCESS. YOU ACKNOWLEDGE THAT THIS SOFTWARE IS LICENSED TO YOU ONLY FOR YOUR EVALUATION AND FEEDBACK AS PART OF A BETA TEST AND THAT YOUR ABILITY TO PARTICIPATE IN THE BETA TEST IS SUFFICIENT CONSIDERATION. 1. COPYRIGHT. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, music, text and "applets" incorporated into the Software) and any printed materials accompanying the Software are owned by the Licensor or its suppliers. 2. GRANT OF LICENSE. The Software is licensed and not sold to you and its use is subject to this Agreement. Licensor grants You a limited, personal, non-exclusive license to use the Software in the manner described in the user documentation solely during the Beta Test period. The Beta Test period is a limited amount of time established by Licensor in its sole discretion and Licensor may disable the Software through electronic means following the Beta Test period. Licensor reserves all rights not expressly granted to You in this Agreement. 3. PERMITTED USES; LICENSOR USE OF YOUR FEEDBACK; COFIDENTIALITY OBLIGATIONS. Your use of the Software is limited to use during the Beta Test period and solely for You to review the Software and provide feedback to Licensor, You may install and use the Software on a single computer. You may make and maintain one copy of the Software for backup and archival purposes, provided that the original and copy of the Software are kept in your possession and you reproduce all copyright and other proprietary notices that are on the original copy of the Software. You agree that any feedback you provide to Licensor becomes the sole property and proprietary information of Licensor; Licensor may make any use of Your feedback without limitation, restriction, or obligation to You. You also agree to maintain in confidence any feedback that You provide to Licensor unless and until such feedback becomes publicly available information through no action of Your own. 4. DIGITAL RIGHTS MANAGAMENT. The Software may include digital rights management technologies to collect personal information from you in order to activate a game. You expressly consent to Licensor's use of cookies, clear GIFs, and digital rights management when you use Licensor's services or access the game. The digital rights management may also disallow or disable access to the Software where Licensor has reason to believe it is being used in violation of these terms or where the term of this Agreement has ended. 5. RESTRICTIONS. You may not delete or obscure any copyright, trademark or other proprietary notice on the Software or accompanying printed materials. Except as expressly permitted by applicable law, You may not decompile, modify, reverse engineer, disassemble or otherwise reproduce the Software. You may not copy, rent, lease, sell, sublicense, distribute, publicly display the Software, create derivative works based on the Software or otherwise commercially exploit the Software. You may not sell, resell, or distribute unlock keys whether purchased from an authorized distributor or generated independently. You may not evade the digital rights management technology, copyright protection, access restrictions or other authorization mechanisms for the Software. You may not electronically transmit the Software from one computer, console or other platform to another or over a network. You may not circumvent any encrypted data protections or gain access to data that is not licensed. You may not use any backup or archival copy of the Software for any purpose other than to replace the original copy in the event it's destroyed or becomes defective. 6. TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying the Software. This Agreement will terminate automatically without notice from Licensor if you fail to comply with any provision of this Agreement. Upon notice of termination, You agree to promptly destroy all of your copies of the Software. This Agreement terminates automatically upon the expiration of the Beta Test period. All provisions of this Agreement as to warranties, limitation of liability, remedies and damages will survive termination. 7. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED TO YOU "AS IS" AS PART OF A BETA TEST AND YOU ACKNOWLEDGE THAT THE SOFTWARE MAY CONTAIN MATERIAL ERRORS AND BUGS; LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. 8. LIMITATION OF REMEDIES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. IN NO EVENT SHALL THE LIABILITY OF LICENSOR EXCEED THE AMOUNT RECEIVED BY LICENSOR FROM YOU UNDER THIS AGREEMENT. In jurisdictions that do not allow the exclusion or limitation of liability for consequential, special or incidental damages, Licensor's liability under this Agreement shall be limited to the maximum extent permitted by applicable law. 9. EXPORT CONTROL. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export or import as may be required. 10. GENERAL. This Agreement will be governed by the laws of the State of California in the United States of America, without regard to or application of conflicts of law rules or principles. The Federal and State Courts located in Santa Clara County shall have sole jurisdiction over any disputes arising hereunder and the parties hereby submit to the personal jurisdiction of such courts. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force. In the event any proceeding or lawsuit is brought by Licensor or You in connection with this Agreement, the prevailing party in such proceeding or lawsuit shall be entitled to receive its costs, expert witness fees and reasonable attorney's fees, including costs and fees on appeal. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. This Agreement is the complete and exclusive statement of the agreement between Licensor and You which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. This Agreement shall not be modified except by a subsequently dated written amendment or exhibit signed by both parties by their duly authorized representatives. THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES. Copyright © 2007, PlayFirst, Inc. All Rights Reserved. Protected by copyright and licenses restricting use, copying, distribution and decompilation. PlayFirst, Diner Dash, Diner Dash: Hometown Hero, and all related titles, logos, and characters are trademarks of PlayFirst, Inc., or its suppliers in the United States and other countries.
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