PLEASE READ THIS AGREEMENT CAREFULLY

      

END USER SOFTWARE LICENSE AGREEMENT



THIS IS A LICENSE AGREEMENT ("AGREEMENT") BETWEEN PLAYFIRST, INC. ("PLAYFIRST"), AND YOU ("LICENSEE" OR "YOU") FOR USE OF THE ACCOMPANYING SOFTWARE AND USER DOCUMENTATION (THE "SOFTWARE").  PLAYFIRST 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, PLAYFIRST 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.  IN SUCH CASE, ANY AMOUNTS ALREADY PAID BY YOU MAY BE REFUNDED BY PLAYFIRST (ONLY IF YOU PURCHASED THE LICENSE TO THE SOFTWARE DIRECTLY FROM PLAYFIRST) OR THE RETAILER FROM WHICH YOU PURCHASED THE SOFTWARE, SUBJECT TO THE APPLICABLE REFUND POLICY.



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 PlayFirst or its suppliers.



2. GRANT OF LICENSE.  The Software is licensed and not sold to you and its use is subject to this Agreement. Subject to the terms and conditions of this Agreement and in consideration of Your agreement to be bound by this Agreement, PlayFirst grants You a limited, personal, non-exclusive license to reproduce as necessary to install and use the Software in the manner described in the user documentation. You may also distribute copies of the time and/or feature-limited trial versions of the Software, provided you do so on a no-charge and non-commercial basis, if the digital rights management software included with the Software permits this without alteration or circumvention of the Software. PlayFirst reserves all rights not expressly granted to You in this Agreement. You agree to pay any sales, use, value added, or other tax or charge imposed or assessed by any governmental entity.  If You are required by operation of law or otherwise to deduct any percentage of fees due under this Agreement, the fees shall be increased to such amount as may be necessary so that PlayFirst receives the full amount it would have received had those fee payments been made without deduction. 



3. PERMITTED USES.  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 may permanently transfer all your rights under this Agreement, provided you give the Licensor prior written notice, You retain no copies, You transfer all of the Software (including all component parts, the media and printed materials and any upgrades) and the recipient reads and accepts this Agreement. Any assignment in derogation of the foregoing shall be null and void.



4. DIGITAL RIGHTS MANAGAMENT AND PRIVACY.  



a. 	If the Software is enabled to provide online features, You may voluntarily submit information to the PlayFirst website such as Your user name, password, high scores, medals, chat text, or content that You create or access through the Software ("Online Services").  You consent to the PlayFirst Privacy Policy (http://www.playfirst.com/privacypolicy.html) which provides for the collection, processing, transmission and disclosure of all such information by PlayFirst; this information is transmitted along with the name of the game and Your IP address to PlayFirst servers. PlayFirst will use such information for the purposes of managing and operating the PlayFirst website and providing the Online Services to You. Your use of the Online Services is also subject to the Terms of Service (http://www.playfirst.com/tos.html), to which you hereby consent.



b.	The Software may include digital rights management technologies provided by the distributor of your copy of the Software.  This digital rights management technology may be used to collect personal information from you in order to activate a game in order to prevent unauthorized use.  PlayFirst has no control over or liability for any third party digital rights management technology and you should contact the retailer from whom you purchased your copy of the Software for their policies.  Where PlayFirst's digital rights management technologies are used, PlayFirst's collection, use, disclosure, and protection of personal information is described in PlayFirst's Privacy Policy.  You expressly consent to processing of your personal information, in accordance with the Privacy Policy, in the country in which You reside as well as in other jurisdictions, such as the United States, which may have less stringent laws regarding the processing of personal information.  You expressly consent to PlayFirst's use of cookies, clear GIFs, and digital rights management when you use PlayFirst's services or access the game, as described in the Privacy Policy.  The digital rights management may also disallow or disable access to the Software where PlayFirst 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. If this Software allows you to purchases licenses to upgrades and features (new levels, characters, in-game items) at the PlayFirst online store ("Game Items"), all such Game Items, even if licensed at a later date, are part of this Software and subject to this end user license agreement.   Accordingly, you may not sell or transfer the Game Items and all such transfer or sale is null and void.  Any unauthorized reproduction or modification, distribution, or performance of the Software including any Game Items is strictly prohibited.



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 PlayFirst 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. All provisions of this Agreement as to warranties, limitation of liability, remedies and damages will survive termination. The parties agree to waive any provisions, procedures and the operation of any legislation to the extent that a court order or approval is required to terminate this Agreement.



7. WARRANTY DISCLAIMER.  The Software is provided to You "As Is" and PlayFirst 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 PlayFirst, its employees, distributors, dealers, or agents shall increase the scope of the above warranties or create any new warranties.



8. LIMITATION OF REMEDIES.  

a. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL PLAYFIRST 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 (WHETHER BASED IN CONTRACT, TORT, OR STATUTE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF PLAYFIRST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.  



b. IN NO EVENT SHALL THE LIABILITY OF PLAYFIRST EXCEED THE AMOUNT RECEIVED BY PLAYFIRST FROM YOU UNDER THIS AGREEMENT OR ONE U.S. DOLLAR ($1.00) IF LICENSOR IS NOT IN RECEIPT OF ANY MONIES FROM YOU. 



c. In jurisdictions that do not allow the exclusion or limitation of liability for consequential, special or incidental damages, PlayFirst's liability under this Agreement shall be limited to the maximum extent permitted by applicable law.  Nothing in this Agreement limits PlayFirst's liability for fraudulent misrepresentation or for death or physical injury directly caused by PlayFirst's negligence.  



d. PlayFirst shall have the right to obtain injunctive or administrative relief in any court of competent jurisdiction or through any administrative authority having jurisdiction over a party in the event of a breach of the terms of this Agreement.



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 PlayFirst 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, unless the waiver is in writing by You or an authorized agent of Licensor, be taken or held to be a waiver of the provision itself. This Agreement is the complete and exclusive statement of the agreement between PlayFirst 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.  You represent that You have entered into this Agreement of Your own free will and that You are above the age of minority at the time You agree to this Agreement or that Your legal guardian consents to these terms on Your behalf.



THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY.  



UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.



Copyright © 2008 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.



