Eula | Sirius Satellite Radio Sirius-S50 instruction

vent or attempt to circumvent this system by any means.

(g)You shall not export or re-export the Software or the Receiver without the appropriate U.S. or foreign government licenses.

(h)The PPI Software (as deﬁned below) is “commercial computer software” and any accompanying documentation is “commercial computer software documentation”. Use, duplication or disclosure of the PPI Software and/or documentation by an agency or instrumentality of the U.S. government is subject to the terms of this EULA pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable.

(i)Supply of the Receiver and the Software does not convey a license nor imply any right to distribute content created with this product in revenue-generating broadcast systems (terrestrial, satellite, cable and/or other distribution channels), streaming applica- tions (via Internet, intranets and/or other networks), other content distribution systems (pay-audio or audio-on-demand applications and the like) or on physical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like). An independent license for such use is required. For details, please visit http://mp3licensing.com.”

3. AUTOMATIC COMMUNICATIONS FEATURES; USE OF INFORMATION. (a) The Computer Software includes functionality that may automatically communicate information to Sirius over the Internet as part of its normal operation. These communications features may be enabled by default. You may opt out of these communications by changing the settings in preferences menu

of the Computer Software. An initial list of the communications features is listed below. The communications features may be changed by any updates of the Computer Software that you install. By installing and/or using the Computer Software and any related updates, you agree to permit the installation and use of the communications features. You are responsible for any telecom- munications or other connectivity charges incurred through use of the Computer Software.

(i)Once you install the Computer Software and connect the Receiver, the Computer Software may provide Sirius with user infor- mation, including electronic identiﬁcation number of the Receiver (the “ESN”).

(ii)The Computer Software may provide Sirius with the following information from time to time: the channels of the Sirius Service that you listen to on the Receiver and the amount of time which you listen, the content that you store on the Receiver, and the chan- nels of the Sirius Service that you have set as presets on the Sirius Receiver.

(b)Sirius may match the ESN and other information it receives to personally identiﬁable information provided by you as part of your subscription to the Sirius Service. Sirius may use the information it receives to keep statistics on the aggregated anonymous use of the Software and/or the Sirius Service and to provide you with additional content. You may opt out of receiving any additional content by changing the settings in preferences menu of the Computer Software.

4. DIGITAL RIGHTS MANAGEMENT. (a) The Software uses the Microsoft digital rights management technology for Windows Media (“WM-DRM”) to protect the integrity of Sirius and third party content (“Secure Content”) so that the intellectual property, including without limitation, the copyright, in such content is not misappropriated. Portions of the WM DRM software (the “WM- DRM Software”) use WM-DRM to transfer or play Secure Content. If the WM-DRM Software’s security has been compromised, owners of Secure Content (“Secure Content Owners”) may request that Microsoft revoke the WM-DRM Software’s right to copy, display, transfer, and/or play Secure Content. Revocation does not alter the WM-DRM Software’s ability to play unprotected content. A list of revoked WM-DRM Software is sent to your computer whenever you download a license for Secure Content from the Internet. Microsoft may, in conjunction with such license, also download revocation lists onto your computer on behalf of Se- cure Content Owners. Secure Content Owners may also require you to upgrade some of the WM-DRM components distributed with the WM-DRM software (“WM-DRM Upgrades”) before accessing their content. When you attempt to play such content, WM-DRM Software built by Microsoft may notify you that a WM-DRM Upgrade is required and then ask for your consent before the WM-DRM Upgrade is downloaded. WM-DRM Software used by third parties may do the same. You agree that Microsoft and other third parties may upgrade the WM-DRM Software without notice to you. If you decline an upgrade, you will not be able to access content that requires the WM-DRM Upgrade; provided that, you will still be able to access unprotected content and Secure Content that does not require the upgrade.

(b)You may not take any action to circumvent or defeat the security or content usage rules provided or enforced by the WM-DRM Software. Sirius is not responsible for the operation of the WM-DRM Software in any way, including without limitation, revocation of the WM-DRM Software’s right to copy, display, transfer, and/or play Secure Content. Sirius is not responsible for any communi- cations to or from any Secure Content Owner, or for the collection or use of information by any Secure Content Owner.

5. OWNERSHIP. All title, ownership, rights, and intellectual property rights in and to the Software and the Documentation shall remain in the property of Sirius and its licensors. The Receiver Software contains software owned by PortalPlayer and/or its sup- pliers (the “PPI Software”). The PPI software includes MPEG Layer-3 audio coding technology licensed from Fraunhofer IIS and Thomson. The Software also includes Microsoft Windows Media Technology. The Software is protected by the copyright laws of the United States and international copyright treaties.

6. WARRANTIES. (a) Sirius warrants that for a period of 90 days from the date of your acquisition the Software if operated as

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

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