Sonic Blue ReplayTV 5500 User Manual Download Page 70

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H. Software.

ReplayTV provided certain software with the ReplayTV unit you purchased, and may, at its option, provide replacement (for example, bug fixes,

updates or upgrades) and additional software to you from time to time (which may include by automatic downloads to the ReplayTV unit), in order for you to

access and use certain features of the ReplayTV Service. The ReplayTV Service may include software updates. ReplayTV reserves the right to add, delete or

modify features in any software update. Your use of all such software is subject to the terms of this Agreement. However, if a software license agreement is

included with any such software, then those terms (and not this Agreement) will govern your use of that software. You have a limited, non-exclusive right to use

the software only with the ReplayTV unit with which the software was provided or for which it was downloaded. You may make one copy of the software you

download for backup purposes only, provided that such backup copy must include all copyright and other proprietary information and notices contained on the

original. You acknowledge and agree that the software is copyrighted and contains material that is protected by copyright, trademark, trade secret and other laws

and international treaty provisions relating to proprietary rights. You may not remove, change or hide any of ReplayTV’s or its licensors’ or suppliers’ propri-

etary rights notices on or in the software or on output generated by the software. Except and only to the extent permitted by applicable law and this Agreement,

you may not copy, decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, assign, transfer, or create derivative works from the software.

You acknowledge and agree that any unauthorized use, transfer, sublicensing or disclosure of the software may cause irreparable injury to ReplayTV, and under

such circumstances, ReplayTV shall be entitled to equitable relief, without posting bond or other security, including but not limited to, preliminary and perma-

nent injunctive relief.

I. Ownership; Certain Rights.

ReplayTV and its licensors and suppliers retain title to and ownership of all the ReplayTV software. ReplayTV and its licensors

and suppliers own the intellectual property rights in and to the ReplayTV unit and the ReplayTV Service, including the copyrights and trademarks associated

with the ReplayTV unit and the ReplayTV Service.

2. Termination of Service; Your Indemnity Obligations

ReplayTV has the absolute right to immediately suspend or terminate your account, and terminate this Agreement, if you (a) breach any provision of this Agree-

ment or (b) misuse the ReplayTV Service. In addition, if ReplayTV is required to take action such as deactivating or terminating the provision of the ReplayTV

Service to you to comply with applicable laws or any compliance policy that DNNA may adopt from time-to-time, it may do so without violating the terms of

this Agreement. You further agree that you will defend, indemnify and hold harmless ReplayTV and its affiliates from and against any and all claims, actions,

suits, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any of the actions described above that would entitle

ReplayTV to terminate this Agreement.

3. DISCLAIMERS AND LIMITATIONS OF LIABILITY

A. Warranty Disclaimer.

THE REPLAYTV SERVICE IS PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” REPLAYTV AND ITS

SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND REGARDING THE REPLAYTV SERVICE (INCLUDING THIRD PARTY PROGRAMS),

WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANT-

ABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ReplayTV makes no warranty that (a) the ReplayTV Service or its content

will meet your requirements, be uninterrupted, error-free, secure or timely; or (b) that the information obtained through the ReplayTV Service (including but not

limited to Third Party Programs) is accurate, current, complete or reliable. Some jurisdictions do not allow the disclaimer of implied warranties, so the above dis-

claimer may not apply to you. You may also have other legal rights that vary from state to state.

B. NO INCIDENTAL OR CONSEQUENTIAL DAMAGES.

IN NO EVENT WILL REPLAYTV OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO

YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY KIND (WHETHER FOR

LOST PROFITS, LOSS OF DATA OR OTHERWISE) ARISING FROM OR RELATING TO YOUR USE OF THE REPLAYTV SERVICE OR THIS AGREE-

MENT, EVEN IF REPLAYTV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

C. LIMITATIONS OF REPLAYTV’S LIABILITY.

IN NO EVENT SHALL REPLAYTV’S AGGREGATE LIABILITY TO YOU (AND ANYONE ELSE

WHO USES THE REPLAYTV SERVICE THROUGH YOUR ACCOUNT), FOR ANY AND ALL CLAIMS ON ANY BASIS, WHETHER IN TORT, CON-

TRACT OR OTHERWISE, EXCEED THE TOTAL AMOUNT YOU PAID TO REPLAYTV FOR THE REPLAYTV UNIT AND THE REPLAYTV SERVICE.

YOU UNDERSTAND THAT THESE LIMITATIONS OF REPLAYTV’S AND REPLAYTV’S SUPPLIERS’ AND LICENSORS’ LIABILITY ARE A FUN-

DAMENTAL PART OF THIS AGREEMENT, AND REPLAYTV WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATION. Some