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[ EULA ]
9
directed, will substantially achieve the functionality described in the Documentation and will be free from defects in material and
workmanship. This warranty shall immediately terminate if the Software is used on or in conjunction with hardware or software
other than the unmodified version of Receiver which the Software was designed to be used as described in the Documentation,
any modifications are made to the Software during the warranty period, if the media is subjected to accident abuse or improper
use, and/or the terms of this EULA are breached. Sirius does not warrant that use of the Software will be uninterrupted or that the
operation of the Software will be error-free or secure. Depending on manufacturer and model of your Receiver, you may or may not
be entitled to upgrades of the Receiver Software. Please check your Receiver owner’s manual for further information.
(b) SIRIUS LICENSES THE SOFTWARE TO YOU “AS IS”, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW SIRIUS AND ITS SUPPLIERS (INCLUDING MICROSOFT AND PORTALPLAYER) HEREBY DISCLAIM ALL OTHER
WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANT-
ABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE AND THE DOCUMENTATION.
THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHER RIGHTS THAT VARY FROM
STATE/JURISDICTION TO STATE/JURISDICTION.
(c) Sirius’ sole liability for a breach of its warranties shall be in Sirius’ sole discretion: (i) to replace your defective media, (ii) to
advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a
procedure different from that set forth in the Documentation and/or (iii) if the above remedies are impracticable, to refund the
license fee, if any, you paid for the Software. Repaired, corrected or replaced copies of the Software and the Documentation shall
be covered by the same limited warranty for the period remaining under the warranty that covered the original copy of the Software
or if longer for 30 days after the date Sirius either provided you with the repaired or replaced copy of the Software or advised you
as to how to operate the Software so as to achieve the functionality described in the Documentation, whichever is applicable.
Sirius will be obligated to honor its obligations in this Section 6(c) only if you inform Sirius of the problem with the Software during
the applicable warranty period and provide evidence of the date you acquired the Software.
7. INDEMNIFICATION. (a) You shall defend, indemnify and harmless Sirius, its officers, directors and employees, from and against
any losses, damages, fines and expenses. including without limitation, attorneys’ fees and expenses, arising out of or relating to any
claims that you have: (i) viewed, downloaded, encoded, compressed, copied or transmitted any 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 EULA and/or the Terms and Conditions.
(b) If you are importing the Software from the United States, you shall defend, indemnify and hold harmless Sirius from and against
any import and export duties or other claims arising from such importation.
8. LIMITATION OF LIABILITY. NEITHER SIRIUS NOR ITS SUPPLIERS (INCLUDING MICROSOFT AND PORTALPLAYER)
IS RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOSSES RELATING TO THE
USE AND/OR PURCHASE OF THE SOFTWARE, THE DOCUMENTATION, THE RECEIVER AND/OR THE SIRIUS SERVICE,
INCLUDING WITHOUT LIMITATION, COMPUTER FAILURE AND/OR MALFUNCTION, WHETHER BASED ON NEGLIGENCE
OR OTHERWISE, AND WHETHER OR NOT SIRIUS OR SUCH SUPPLIER (INCLUDING MICROSOFT AND PORTALPLAYER)
HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. SIRIUS TOTAL LIABILITY TO YOU AND ANY OTHER PERSONS
USING THE RECEIVER, THE SOFTWARE AND/OR THE DOCUMENTATION, REGARDLESS OF THE CAUSE, WILL IN NO
EVENT EXCEED THE AMOUNTS THAT YOU HAVE PAID TO SIRIUS FOR THE RECEIVER, THE SOFTWARE AND THE
DOCUMENTATION. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES IS REFLECTED IN SIRIUS’
PRICES AND IS A FUNDAMENTAL ELEMENT OF SIRIUS AGREEMENT TO PROVIDE YOU WITH THE SOFTWARE AND THE
DOCUMENTATION. YOU MAY HAVE GREATER RIGHTS THAN DESCRIBED ABOVE UNDER YOUR STATE’S LAWS.
9. TERMINATION. (a) This EULA will automatically terminate without notice if you fail to comply with any of its terms
(b) This EULA may also terminate without notice to you in the event Sirius’ or any of its suppliers (including without limitation
Microsoft and PortalPlayer ) licenses for technology incorporated into the Software terminates.
(c) You may terminate this EULA at any time by providing Sirius with written notice of termination to: Sirius Satellite Radio Inc.,
1221 Avenue of the Americas, 36th Floor, New York, New York 10020, Attention: My Sirius Studio Software Termination.
(d) Upon any termination of this EULA, you shall immediately discontinue use of the Software and shall within three days return
to Sirius, or certify destruction of, all full or partial copies of the Software, documentation and related materials provided by Sirius.
Your obligation to pay accrued charges and fees shall survive any termination of this License Agreement.
(e) Except for the license granted in paragraph 1, the terms of this EULA shall survive termination under this paragraph 10.
10. RESOLVING DISPUTES. In order to expedite and control the cost of disputes, you agree that any legal equitable claim (a
“Claim”) relating to the Software, the Documentation and/or this EULA, will be resolved as follows:
(a) Informal Resolution. You and Sirius will first try to resolve any Claim informally. Accordingly, neither you nor Sirius may start a
formal proceeding (except for Claims described in Section 10(d)) for at least 60 days after one of us notifies the other of a Claim