Apple Inc. v. Psystar Corporation

Filing 135

Declaration of MEHRNAZ BOROUMAND SMITH IN SUPPORT OF APPLE'S MOTION TO DISMISS OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES filed byApple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Boroumand Smith, Mehrnaz) (Filed on 9/11/2009)

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Apple Inc. v. Psystar Corporation Doc. 135 Att. 11 Case3:08-cv-03251-WHA Document135-12 Filed09/11/09 Page1 of 4 EXHIBIT 12 TO THE DECLARATION OF MEHRNAZ BOROUMAND SMITH Dockets.Justia.com Case3:08-cv-03251-WHA Document135-12 Filed09/11/09 Page2 of 4 ENGLISH APPLE INC. SOFlARE LICENSE AGREEMENT FOR MAC OS X Single Use and Family Pack license for use on Apple-labeled Systems PLEASE READ THIS SOFlARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLE SOFlARE. BY USING THE APPLE SOFlARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFlARE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE APPLE SOFlARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND. IF THE APPLE SOFlARE WAS ACCESSED ELECTRONICALLY, CLICK "DISAGREE/DECLINE". FOR APPLE SOFlARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFlARE PACKAGE IN ORDER TO OBTAIN A REFUND. 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Apple may use this information, as long as it is in a form that does not personalty identify you, to improve our products or to provide services or technologies to you. 5. Termination. This License is effective until terminated. Your rights under this license wil terminate automatically without notice from Apple if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Apple Software and destroy all copies, full or partial, of the Apple Software. Case3:08-cv-03251-WHA Document135-12 Filed09/11/09 Page3 of 4 6. limited Warranty on Media. Apple warrants the media on which the Apple Software is recorded and delivered by Apple to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase. Your exclusive remedy under this Section shall be, at Apple's option, a refund of the purchase price of the product containing the Apple Software or replacement of the Apple Software which is returned to Apple or an Apple authorized representative with a copy of the receipt. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PĀRTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (gO) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION, PACKAGING OR OTHERWISE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION. 7. 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Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. 12. Controlling law and Severability. This License wil be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. 13. Complete Agreement; Governing language. This License constitutes the entire agreement between the parties with respect to the use of the Apple Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License wil be binding unless in writing and signed by Apple. Any translation of this license is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern. 14. Third Party Acknowledgements. A. Portions of the Apple Software utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the "online" electronic documentation for the Apple Software, and your use of such material is governed by their respective terms. B. Certain software libraries and other third party software included with the Apple Softare are free softare and licensed under the terms of the GNU General Public License (GPL) or the GNU Library/Lesser General Public License (lGPl), as the case may be. You may obtain a complete machine-readable copy of the source code for such free software under the terms of the GPL or LGPl, as the case may be, without charge except for the cost of media, shipping, and handling, upon written request to Apple. Case3:08-cv-03251-WHA Document135-12 Filed09/11/09 Page4 of 4 The GPl/lGPl software is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. A copy of the GPL and LGPL is inciuded with the Apple Software. C. The Apple Softare includes certain softare licensed under the IBM Public license Version 1.0 OPL) or the Common Public license Version 1.0 (CPl). A copy of the source code for the IPL and CPLlicensed software may be found in Apple's Open Source repository. See Apple's Open Source web site (http:// ww.opensource.apple.comf) for information on how to obtain the source code. THE IPL AND CPL SOFTARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 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To the extent that the Apple Software contains MPEG-2 functionality, the following provision applies: ANY USE OF THIS PRODUCT OTHER THAN CONSUMER PERSONAL USE IN ANY MANNER THAT COMPLIES WITH THE MPEG-2 STANDARD FOR ENCODING VIDEO INFORMATION FOR PACKAGED MEDIA IS EXPRESSLY PROHIBITED WITHOUT A LICENSE UNDER APPLICABLE PATENTS IN THE MPEG-2 PATENT PORTFOLIO, WHICH LICENSE IS AVAILABLE FROM MPEG LA, L.L.C, 2S0 STEELE STREET, SUITE 300, DENVER, COLORADO 80206. E. Use of MPEG-4. This product is licensed under the MPEG-4 Systems Patent Portfolio license for encoding in compliance with the MPEG-4 Systems Standard, except that an additional license and payment of royalties are necessary for encoding in connection with (i) data stored or replicated in physical media which is paid for on a title by title basis and/or Oi) data which is paid for on a title by title basis and is transmitted to an end user for permanent storage and/or use. Such additional license may be obtaineCl from MPEG LA, LLC. See http://ww.mpegla.com for additional details. This product is licensed under the MPEG-4 Visual Patent Portfolio license for the personal and non-commercial use of a consumer for (i) encoding video in compliance with the MPEG-4 Visual Standard ("MPEG-4 Video") and/or (ė) decoding MPEG-4 video that was encoded by a consumer engaged in a personal and non-commercial activity and/or was obtained from a video provider licensed by MPEG LA to provide MPEG-4 video. No license is granted or shall be implied for any other use. Additional information including that relating to promotional, internal and commercial uses and licensing may be obtained from MPEG LA, LLC. See http: // ww.mpegla.com. For answers to frequently asked questions regarding use fees under the MPEG LA Visual Patent Portfolio license see ww.apple.com/mpeg4 or ww.apple.com/quicktime/products/qt/faq.html. F. H.264/AVC Notice. To the extent that the Apple Softare contains AVC encoding and/or decoding functionality, commercial use of H.264/AVC requires additional licensing and the following provision applies: THE AVC FUNCTIONALITY IN THIS PRODUCT IS LICENSED HEREIN ONLY FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD ("AVC VIDEO") AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR AVC VIDEO THAT WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. INFORMATION REGARDING OTHER USES AND LICENSES MAY BE OBTAINED FROM MPEG LA L.L.c. SEE HTIP://WW.MPEGLA.COM. G. AMR Notice. The Adaptive Multi-Rate ("AMR") encoding and decoding functionality in this product is not licensed to perform cellular voice calls, or for use in any telephony products built on the QuickTime architecture for the Windows platform. The AMR encoding and decoding functionality in this product is also not licensed for use in a cellular communications infrastructure including: base stations, base station controllers/radio network controllers, switching centers, and gateways to and from the public switched network. data (collectively "Flight Data") displayed through the Apple Software is H. FAA Notice. Aircraft Situation Display and National Airspace System Status Information generated by the Federal Aviation Administration. You agree not to redistribute Flght Data without the prior written consent of the FAA. The FAA and Apple disclaim all warranties, expressed or implied (including the implied warranties of merchantabilty and fitness for a particular purpose), regarding the use and accuracy of the Flight Data. You agree that the FAA and Apple shall not be liable, either collectively or individually, for any loss, damage, claim, liability, expense, or penalty, or for any indirect, special, secondary, incidental, or consequential damages deriving from the use of the Flight Data. The Apple Software is not sponsored or endorsed by the FAA. The FAA is not responsible for technical or system problems, and you should not contact the FAA regarding such problems or regarding operational traffc flow issues. i. Use of Adobe Color Profiles. You may use the Adobe Color Profile software included with the Apple Software pursuant to this License, but Adobe is under no obligation to provide any support for the Color Profiles hereunder, including upgrades or future versions of the Profiles or other items. In addition to the provisions of Sections 7 and 8 above, IN NO EVENT WILL ADOBE BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER. The Adobe Color Profile software distributed with the Apple Software is also available for download from Adobe at ww.adobe.com. EA0390 Rev. 8-14-07

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