eDonkey Installation - Licenses
P2P Programs Installing Unwanted Software - Ben
Edelman
[ Main License | Partners' Licenses ]
All licenses are as obtained from eDonkey's installer in February 2005. See also graphical presentation of license provisions (showing on-screen presentation).
1. Violation of Copyright and Other Laws When Using eDonkey
PLEASE NOTE THAT METAMACHINE, INC. RESPECTS THE RIGHT OF COPYRIGHT OWNERS AND IS FULLY COMMITTED TO PROTECT THEIR RIGHTS. METAMACHINE, INC. EXPECTS ALL EDONKEY USERS AND EDONKEY WEB SITE USERS TO DO THE SAME. WE, THEREFORE, ASK YOU TO PAY SPECIAL ATTENTION TO AVOID VIOLATING COPYRIGHT LAWS AND REGULATIONS. AS A CONDITION TO USE THE METAMACHINE PRODUCTS AND SERVICES, YOU MUST AGREE THAT YOU WILL NOT USE METAMACHINE TO INFRINGE THE INTELLECTUAL PROPERTY OR OTHER RIGHTS OF OTHERS IN ANY WAY. UNAUTHORISED COPYING, DISTRIBUTION, MODIFICATION, PUBLIC DISPLAY, OR PUBLIC PERFORMANCE OF COPYRIGHTED WORKS IS AN INFRINGEMENT OF THE COPYRIGHT HOLDERS' RIGHTS.
YOU SHOULD NOT USE EDONKEY SERVICE TO OBTAIN ANY PERSONAL INFORMATION ABOUT ANY EDONKEY USERS OR TO MODIFY, DELETE OR DAMAGE ANY INFORMATION CONTAINED ON THE PC OF ANY USER CONNECTED TO THE EDONKEY SERVICE. YOU ARE HEREBY PUT ON NOTICE THAT YOU ARE ENTIRELY RESPONSIBLE FOR YOUR CONTENT AND FOR ENSURING THAT IT COMPORTS WITH ALL APPLICABLE LAWS, INCLUDING ALL COPYRIGHT AND DATA-PROTECTION LAWS. IN CASE YOU FAIL TO COMPLY WITH LAWS REGARDING COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS AND DATA-PROTECTION, YOU MAY, BY THE RELEVANT AUTHORITIES, BE EXPOSED TO CIVIL AND CRIMINAL LIABILITY, INCLUDING FINES AND JAIL TIME.
2. MetaMachine's Policy Against Child Pornography
We do not want child pornography on the eDonkey Network. You should report any incidents to one of the non-profit organizations dedicated to fight the spread of child pornography. One such organization is at www.cybertipline.com. You can find a list of such organizations on http//www.meldpunt.org/NL/inhope.html.
PLEASE OBSERVE THAT, IN ADDITION TO BEING DISGUSTING, SPREADING CHILD PORNOGRAPHY IS A CRIMINAL OFFENCE IN MOST COUNTRIES. IF YOU SHARE CHILD PORNOGRAPHY, YOU RUN THE RISK OF BEING PROSECUTED, FINED OR IMPRISONED. A number of non-profit organizations and individuals are actively seeking out child pornography on the Internet and reporting the incidents to the authorities.
3. MetaMachine's Copyright Infringement Policy
MetaMachine respects and wants to protect the rights of copyright owners. We ask all users to pay special attention to avoid violating copyright laws and regulations. Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of copyright holders' rights. You should be aware that some of the files other eDonkey users designate to share may have been created or distributed without the copyright owners' authorization. Your license to use the eDonkey software and access the eDonkey Network is subject to the condition that you shall not infringe the intellectual property rights of others in any way. MetaMachine will terminate the account of any eDonkey users with repeat copyright infringements.
MetaMachine is technically not able to monitor the information users transmit or store via the eDonkey network. Even if MetaMachine were in the position to monitor the information users transmit or store, which it is not, MetaMachine is not obliged under law to conduct such monitoring. To the contrary, monitoring users in any communications network would amount to an infringement of their privacy. We, however, are required by law, to comply with requests by judicial authorities for information about our users, in accordance with national legislation to safeguard national security, defense, and public security and for the prevention, investigation, detection and prosecution of criminal and civil offences.
Terms and Conditions of Installing the webHancer Customer Companion (the "Software").
IMPORTANT NOTICE:
THIS SOFTWARE RELAYS YOUR WEB SURFING PERFORMANCE METRICS TO WEBHANCER CORP. TO GENERATE PERFORMANCE REPORTS FOR THIRD PARTIES. AS SUCH, YOUR INTERNET CONNECTION WILL BE USED PERIODICALLY TO SEND AND RECEIVE DATA.
WE RESPECT OUR CUSTOMERS PRIVACY. TO VIEW WEBHANCER'S PRIVACY POLICY, GO TO: http://www.webhancer.com/privacy.
THIS SOFTWARE SUPPORTS WINDOWS 98/2000/ME/XP and WINDOWS NT 4.0 Service Pack 4 and higher (EXCLUDING WINDOWS TERMINAL SERVER AND WINDOWS 2000 WITH TERMINAL SERVICES ENABLED).
THIS IS A LICENSE, NOT A SALE. THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL CONTRACT BETWEEN YOU AND WEBHANCER CORP. ("WEBHANCER") FOR THE CUSTOMER COMPANION SOFTWARE (THE 'SOFTWARE'). THIS SOFTWARE WILL MAKE USE OF YOUR INTERNET CONNECTION. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL NETWORK USAGE COSTS OR ANY OTHER COSTS ASSOCIATED WITH YOUR USE OF THE SOFTWARE. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, UNINSTALL, AND DO NOT USE THE SOFTWARE.
WEBHANCER grants to you a non-exclusive, non-transferable and restricted license to use the Software on a single computer for your internal use, subject to the terms and conditions of this Agreement. You may make and distribute unlimited copies of the Software, excluding copies for commercial distribution, as long as each copy that you distribute is distributed subject to this Agreement, and you reproduce in full all copyright and other proprietary notices pertaining to the Software that appear in the Software.
This Agreement shall remain in effect for as long as you are in compliance with its terms and conditions. This Agreement shall immediately terminate if you fail to comply with any of its provisions. The limitations of liabilities and warranties will survive any termination of this Agreement and will remain in full force and effect even after termination. Should WEBHANCER release any updates, upgrades or new versions of the Software or supplemental code or supporting materials for the Software ("Additional Software Releases"), all such Additional Software Releases shall be considered part of the Software and subject to the terms and conditions of this Agreement and any additional terms and conditions that accompany the Additional Software Releases. In consideration of the foregoing license from WEBHANCER to you, you grant to WEBHANCER the perpetual, unrestricted right to record and use your web surfing performance metrics, in whole or in part, in any form or format.
THE SOFTWARE IS PROVIDED TO YOU "AS IS". YOU ARE SOLELY RESPONSIBLE FOR THE ADEQUATE PROTECTION AND BACKUP OF THE DATA AND EQUIPMENT USED IN CONNECTION WITH THE SOFTWARE. WEBHANCER MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE. WEBHANCER DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE.
NEITHER WE NOR OUR DEALERS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. WE ARE ALSO NOT RESPONSIBLE FOR CLAIMS BY A THIRD PARTY. OUR MAXIMUM AGGREGATE LIABILITY TO YOU AND THAT OF OUR DEALERS AND SUPPLIERS SHALL NOT EXCEED FORTY DOLLARS CANADIAN ($40.00 CDN). THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH. The limited warranty, exclusive remedies and limited liability set out herein are fundamental elements of the basis of the bargain between you and WEBHANCER. You acknowledge and agree that WEBHANCER would not be able to provide the Software free of charge without such limitations. In jurisdictions which do not allow the exclusion or limitation of consequential, incidental or special damages, WEBHANCER's liability for such damages shall be limited to the maximum extent permitted by applicable law.
The Software, including all copies, and all copyrights and all other rights, title and interest subsisting in or related to the Software, and all data collected there from, shall at all times remain the property of WEBHANCER or its licensors. You must reproduce any copyright or other proprietary notices on the Software in their entirety in all copies of the Software. WEBHANCER and its licensors reserve all rights not expressly granted to you. You shall not translate, reverse engineer, decompile or disassemble the Software or any part of the Software, except to the extent this restriction is not permitted by the laws of your jurisdiction; or modify or adapt or create derivative works based on the Software or any part of the Software or merge the Software or any part of the Software with any other software program.
Notice to U.S. Government end users. If this product is acquired under the terms of a: GSA contract-Use, reproduction or disclosure is subject to the restrictions set forth in the applicable ADP Schedule contract; U.S. DoD contract- Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of 252.227-7013; Civilian agency contract- Use, reproduction, or disclosure is subject to 52.227-19 (a) through (d) and restrictions set forth in the accompanying end user agreement. Unpublished-rights reserved under the copyright laws of the United States. WebHancer Corp. 2255 Carling Avenue, 3rd Floor Ottawa, Ontario Canada K2B 7E9.
This Agreement is the entire agreement between WEBHANCER and you and supercedes all other agreements, discussions and negotiations, whether oral or written. This Agreement cannot be modified or amended except by a written agreement signed by an authorized officer of WEBHANCER. This shall be governed by the laws of the Province of Ontario, Canada, excluding conflicts of law and choice of law principles and the United Nations Convention on Contracts for the International Sale of Goods, and any legislation implementing such Convention. You consent and attorn to the exclusive jurisdiction of Ontario courts and waive trial by jury, except to the extent a waiver of a jury trial is not permitted by applicable law. If any provision of this Agreement is found to be illegal, invalid or unenforceable, such provision shall be deemed severed and the remainder of the Agreement shall continue in full force and effect. You agree to comply with all applicable laws including export restrictions as they relate to this Agreement and your use of the Software. The parties have requested that this Agreement and all documents contemplated hereby be drawn up in English. Les parties aux prsentes ont exig que cette entente et tous autres documents envisags par les prsentes soient rdigs en anglais.
ACCEPTANCE OF TERMS
IMPORTANT: PLEASE READ THESE TERMS CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF IBIS, LLC SOFTWARE, WEBSITE, AND INFORMATION. YOU MUST AGREE TO THE TERMS AND CONDITIONS OF THIS WEBSITE TERMS OF USE AND END USER LICENSE AGREEMENT, WHICH INCLUDES THE IBIS PRIVACY POLICY (COLLECTIVELY, THE "AGREEMENT"), AS WELL AS ALL OTHER POLICIES AND GUIDELINES INCORPORATED BY REFERENCE IN THIS AGREEMENT, BEFORE DOWNLOADING, INSTALLING, REGISTERING FOR, VIEWING OR USING IBIS'S SOFTWARE, WEBSITE, AND/OR INFORMATION. THE AGREEMENT IS A BINDING AGREEMENT BETWEEN YOU AND IBIS.
IBIS, LLC, (doing business as and referred to herein as "IBIS") offers a browser toolbar product and service, the Web Search Tools ("Service") and related software, and other services through its website(s). The Service, the related Software, the information provided by IBIS through its own website and from third parties, and any other IBIS product or service is referred to collectively as the "Service." IBIS, LLC, is a Florida limited liability company and is located at 225 N.E Mizner Blvd Ste 300, Boca Raton, FL 33432.
BY DOWNLOADING, INSTALLING, REGISTERING FOR, VIEWING OR USING THE SERVICE, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT INDICATE YOUR ACCEPTANCE, AND DO NOT DOWNLOAD, INSTALL, REGISTER FOR, VIEW OR USE THE SERVICE.
IMPACT OF SERVICE ON YOUR BROWSER AND COMPUTER
By installing the Service you understand and agree that the following changes may be made to your Internet Explorer browser and that the following functions may be performed by the Service: install a Search Toolbar in your browser which may (i) block certain pop-up ads and pages; (ii) display links to related websites and keywords based on the information you view and the websites you visit; (iii) store non-personally identifiable statistics of the websites you have visited; (iv) redirect certain URL's including your browser default address bar search, DNS error page and Search Button page to or through the Service and; (v) automatically update the Service and install added features or functionality conveniently without your input or interaction unless you have chose to be notified of such update in advance.
If at anytime you wish to remove the Service, you can remove it through the Add/Remove Programs menu in your Microsoft Windows control panel. To uninstall
1. Click on the Start button and select Settings and then Control Panel. If you are running Microsoft XP, you can go directly to the Control Panel from the Microsoft Windows Start button. 2.When the Control panel window opens, double-click on the Add/Remove Programs Icon. 3.When the Add/Remove Programs Properties window opens, locate the listing for 'Search Toolbar' that you would like to uninstall from the list of installed programs. 4. Click once on the program to be uninstalled and then click on the Add/Remove button and follow the instructions.
CHANGES TO THIS AGREEMENT
IBIS may change any of the terms and conditions contained in this Agreement, including the Privacy Policy and other policies and guidelines governing the Service, at any time in its sole discretion.
NOTICE OF MATERIAL CHANGES TO THIS AGREEMENT WILL BE POSTED ON IBIS'S WEBSITE OR ON THE SERVICE BEFORE THEY BECOME EFFECTIVE. YOU ARE RESPONSIBLE FOR REVIEWING THE NOTICE AND ANY APPLICABLE CHANGES.
YOU AGREE THAT YOUR CONTINUED USE OF THE SERVICE FOLLOWING ANY CHANGES TO THIS AGREEMENT AND AFTER THE CHANGES TAKE EFFECT WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES.
IF YOU DO NOT AGREE TO FUTURE CHANGES TO THIS AGREEMENT, DO NOT CONTINUE TO USE THE SERVICE AFTER THE EFFECTIVE DATE OF SUCH CHANGES AND UNINSTALL ALL IBIS SOFTWARE.
PROPRIETARY RIGHTS
Intellectual Property and Copyright Infringement Notice
The Service is controlled and operated by IBIS, LLC, a Florida limited liability company located at 225 N.E. Mizner Blvd, Ste 300, Boca Raton, FL 33432. The Service, and all materials on the Service including code, images, text, illustrations, logos, audio and video files (collectively "intellectual property"), are protected by copyrights, trademarks, service marks, or other proprietary rights which are either owned by IBIS, or owned by other parties who have licensed their intellectual property to IBIS. The compilation (meaning the collection, arrangement, and assembly) of all materials on the Service is the exclusive property of IBIS and protected by U.S. and foreign laws and international copyright treaties. Material from the Service and from any other Service owned, operated, controlled, or licensed by IBIS may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. Use or modification of IBIS's intellectual property in any form, including but not limited to use on any other website or networked computer environment, without express written authorization is a violation of IBIS's copyrights and other proprietary rights and is strictly prohibited.
Notification and Procedure for Making Claims of Copyright Infringement
You may notify IBIS if your work has been copied in a way that you believe constitutes copyright infringement. In compliance with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2), IBIS has designated a Copyright Agent to receive any such notification. IBIS's Copyright Agent may be contacted at:
IBIS, LLC Attn: Corporate Copyright Agent 225 N.E Mizner Blvd Ste 300 Boca Raton, FL 33432
If you wish to notify IBIS's Copyright Agent of a claim of copyright infringement, please provide written notice. Your notice must contain the following information:
1. A physical or electronic signature of the person authorized to act on behalf the copyright owner;
2. Identification or description of the copyrighted work you claim has been infringed;
3. Identification or description of the work you believe is infringing on your copyrighted work and enough information to assist IBIS in locating the allegedly infringing work;
4. Your address, telephone number, and email address;
5. A statement that you have a good faith belief that the use by the person you believe has infringed on your copyright is not authorized by the copyright owner, its agent, or the law;
6. Your statement, made under penalty of perjury, that the information contained in your notification is accurate, and that you are the copyright owner or are authorized to act on the owner's behalf.
Trademarks
IBIS, IBIS.com and other IBIS logos, page headers, button icons, scripts, and service names are trademarks and/or trade dress of IBIS or its affiliates. None of IBIS's or its affiliates' trademarks may be used in connection with any product or service that is not IBIS's or its affiliates', in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits IBIS, or its affiliates.
Software License
The proprietary software associated with the Service ("Software"), which shall be deemed to include any enhancements or modifications thereto and any related documentation, is a copyrighted work. Subject to your compliance with all of the terms and conditions of this Agreement, and in consideration of you promises reflected in this Agreement, IBIS grants to you a personal, nonexclusive, nonassignable and nontransferable license to download, install and use the Software to and on a single computer and to use the Software solely to use the Service as permitted under this Agreement. All rights not expressly granted to you by the foregoing sentence are reserved by IBIS. Without limiting the generality of the foregoing, you may not modify, distribute, sublicense, rent, lease, or create derivative works based on the Software or any part thereof. You may not reverse engineer, decompile or disassemble the Software. You may not copy the Software other than to make one copy of the Software for back-up purposes. You may not use the Software for any commercial purpose other than in connection with the Service and as permitted hereunder, and not in the operation of a service bureau or for the benefit of any other person or entity, and you may not transfer, sell, assign or convey it to another party without IBIS's prior written consent. You shall maintain all copyright notices, trademark notices, and other proprietary notices on the Software. You have no ownership rights in the Software. Rather, You have a license to use the Software pursuant to the terms of this Agreement. Title, ownership rights, and intellectual property rights in and to the Software and related documentation remain in IBIS.
Other Licenses
Your Grant
By entering into this Agreement and/or using the Service, or posting any Submission (defined below) you grant IBIS and its affiliates a perpetual, nonexclusive, world-wide, royalty-free, irrevocable and fully sublicensable right and license to store, copy, modify, translate, distribute, display and otherwise use any your Submissions, and any or all information contained therein, for any purpose whatsoever, including, but not limited to, in marketing or advertising materials, and to exercise all copyright and rights of publicity over the material displayed in your Submissions, in any existing or future media, now known or later developed. You also waive any "moral rights" or rights of attribution or integrity in such content. You are not entitled to any compensation for such use. You also grant IBIS and its affiliates and sublicensees the right to use your nickname or any identifying information that you submit with your Submissions.
IBIS's Grant
Subject to your compliance with all the terms and conditions of this Agreement, and in consideration of your promises reflected in this Agreement, IBIS grants to you a limited license to make personal use of the Service. This license expressly excludes, without limitation, any resale, modification, or commercial use of the Service or any portion thereof or any Submissions and making any derivative works based upon or distributing or copying the Service or any Submissions, except as expressly permitted hereunder. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of IBIS and its affiliates without express written consent of IBIS. You may not use any meta-tags or any other "hidden text" utilizing the name or trademarks of IBIS and its affiliates without the express written consent of IBIS and its affiliates. Any unauthorized use terminates the permission or license granted by IBIS in this paragraph.
INDEMNIFICATION
You agree to defend, indemnify, and hold harmless IBIS and its affiliates, and each of their officers, directors, employees, agents, representatives, information providers and licensors, from any claims, costs, losses, damages, judgments and expenses, including but not limited to reasonable attorney's fees, relating to or arising out of any breach of this Agreement or any use of the Service by you, or by any other person using the Service through you or using your computer.
DISCLAIMER OF WARRANTY
YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF THE SERVICE IS YOURS AND YOURS ALONE. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IBIS AND ITS AFFILIATES DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NEITHER IBIS NOR ANY OF ITS AFFILIATES, NOR ANY OF THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES REPRESENT OR WARRANT (I) THAT THE SERVICE, INCLUDING ITS CONTENT, WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS OR MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE, OR ERROR FREE; (II) THAT THE SERVICE WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, OR SECURE; (III) THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE WILL BE FREE FROM VIRUSES, "WORMS," "TROJAN HORSES" OR OTHER HARMFUL PROPERTIES; (IV) THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF ANY SUBMISSION, RECOMMENDATION, OR OTHER MATERIAL PUBLISHED OR ACCESSIBLE ON OR THROUGH THE SERVICE OR THE SITE; (V) THE AVAILABILITY FOR SALE, OR THE RELIABILITY OR QUALITY OF ANY PRODUCTS DISCUSSED, REVIEWED BY USERS OR REFERENCED USING THE SERVICE; (VI) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND (VII) AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE OR THAT THE SERVICE IS NONINFRINGING. IBIS AND ITS AFFILIATES HEREBY DISCLAIM, AND YOU HEREBY WAIVE AND RELEASE IBIS AND ITS AFFILIATES FROM, ANY AND ALL OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES IN TORT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, WHETHER OR NOT ARISING FROM THE NEGLIGENCE (ACTIVE, PASSIVE OR IMPUTED) OF IBIS OR ITS AFFILIATES. IF YOU PURCHASE A PRODUCT OR SERVICE REVIEWED BY ANOTHER USER OF THE SERVICE OR OTHERWISE AS A RESULT OF USING THE SERVICE OR ANY SUBMISSION, AND A DISPUTE ARISES BETWEEN YOU AND THE SELLER, YOU RELEASE IBIS AND ITS AFFILIATES, AND ANY OF ITS OR THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES, FROM ANY CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. YOU ACKNOWLEDGE AND AGREE THAT ANY SOFTWARE OR OTHER CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH SOFTWARE AND/OR CONTENT.
LIMITATION OF LIABILITY
IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL IBIS OR ANY OF ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (REGARDLESS OF THE FORM OF ACTION) ARISING OUT OF (i) USE OF THE SERVICE BY ANY PERSON, INCLUDING BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, ANY INFORMATION AND CONTENT ACCESSED OVER THE SERVICE, (ii) ANY USE OR INABILITY TO USE THE SERVICE FOR WHATEVER REASON, INCLUDING BUT NOT LIMITED TO COMMUNICATIONS FAILURE OR ANY OTHER FAILURE WITH TRANSMISSION OR DELIVERY OF ANY INFORMATION ACCESSED THROUGH THE SERVICE, OR (iii) ANY GOODS OR SERVICE DISCUSSED, PURCHASED OR OBTAINED, DIRECTLY OR INDIRECTLY, THROUGH THE SERVICE, IN EACH CASE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ONLY PERSONS 14 AND OLDER ARE ELIGIBLE TO USE IBIS'S SERVICE
You must be fourteen years or older to download, register for, or use the Service. By using the Service, you warrant to IBIS that you are fourteen years or older. In addition, parents or guardians of children fourteen years or older should be aware that the Service is designed to appeal to a broad audience. Accordingly, it is your responsibility to determine whether any portion of the Service is inappropriate for your child.
USER AND OTHER THIRD PARTY CONTENT
"Submissions" are postings authored by you or another user of the Service through, and/or uploaded to, the IBIS's Services. You are responsible for anything you post in any Submission. All Submissions must be accurate and truthful. You may not post in any Submission material that you know or reasonably should know to be false or materially misleading, or that is libelous, defamatory, obscene, vulgar, abusive, harassing, threatening, or otherwise objectionable, or that is solely commercial in nature, or that invades a person's privacy, infringes another person's intellectual property rights, or otherwise violates any law or regulation. IBIS is not responsible for, and does not represent or endorse the accuracy or reliability of, any opinion, advice, statement, recommendation or other information included in any Submission posted on the Service. Any reliance by you on any such opinion, advice, statement, recommendation or other information in a Submission shall be at your sole risk. You acknowledge that transmission to and from the Service is not confidential and your Submissions may be read or intercepted by others. Without limiting the foregoing, IBIS retains the right but not obligation in its absolute and sole discretion to screen, edit, or delete any Submission or other content displayed, uploaded to, distributed, or otherwise published through the Service and to prevent or restrict access to the Service for any reason, including to purge Submissions, or take any other action to restrict access to or availability of material.
ANTI-SPAM POLICY AND ACCEPTABLE USE
While we encourage you to refer friends, family, colleagues, and others to use the Service, you may do so only through methods that are consistent with the terms and conditions of your own Internet service provider as well as prevailing standards of acceptable Internet use and behavior. In particular, you may not use the Service, name, trademarks, or other intellectual property of IBIS in conjunction with the sending of unsolicited email, or cause to be used IBIS's equipment, network connectivity, or other resources to originate, deliver, relay, or otherwise transmit unsolicited email messages. You may not engage in any of these prohibited activities by using the service of any other provider, third-party agent, remailing service, or address forwarding service, in such a way that IBIS's network addresses or IBIS-hosted Web or email services are in any way identified as being associated with the sending of unsolicited email. Other prohibited methods of advertising or promoting your involvement with IBIS include multiple postings of messages to Usenet newsgroups, mailing lists, chat rooms (including IRC, AIM, ICQ, or other interactive chat services) or other online forums. Incidents of "spamming" or similar inappropriate behavior should be reported to IBIS's Webmaster via Email.
ACCESS TO IBIS'S SERVICE
To use the Service, you must provide all your own equipment to establish a connection to the Internet and provide for your own access, including paying any fees.
IBIS may change, suspend, terminate or discontinue any aspect of the Service at any time, including the availability of any feature, database, or content. IBIS may also impose limits on certain features or restrict your access to parts or all of the Service without notice or liability. Upon IBIS's determination, in its sole discretion, that you have violated this Agreement, the law, or any of the policies and guidelines incorporated in this Agreement, IBIS shall terminate your access to the Service without notice.
OTHER WEBSITES TO WHICH IBIS'S SERVICE LINK OR REFER
The Web changes constantly, and no technique can ever index all pages accessible on the Web. As a result, IBIS cannot guarantee the completeness or accuracy of the websites or URLs to which IBIS's Service link or refer. Further, the process of including websites in IBIS's Service is largely automatic. IBIS does not screen the websites included in the Service, and these other websites are maintained by persons over whom IBIS exercises no control. For these reasons, IBIS assumes no responsibility for the content of any website or URL included in the Service and is not responsible for errors or omissions or for offensive or objectionable content contained on any website or URL included in the Service.
ILLEGAL, UNAUTHORIZED, OR FRAUDULENT CONTENT OR ACTIVITIES
The Service may be used only for lawful purposes and in a lawful manner and in compliance with the Agreement including IBIS's policies and guidelines incorporated by reference in this Agreement. You agree to comply with all applicable laws and regulations. IBIS has the right, but not the obligation, to monitor any Submission, activity, and content associated with the Service. IBIS may investigate any reported violation of its policies and take any action it deems appropriate, including terminating your access to the Service without notice. Any of the following, without limitation, would be a violation of the Agreement and IBIS's policies and guidelines, and upon IBIS's determination, in its sole discretion, that you have engaged in any of the following, IBIS shall terminate your access to the Service without notice, and to the extent applicable, remove, or disable access to, any material that is in violation of the following or claimed to be infringing or to be the subject of infringing activity. Accordingly, you expressly represent, warrant and covenant that you shall not upload, post or transmit to or distribute or otherwise publish through the Service any materials which (i) restrict or inhibit any other user from using and enjoying the Service, (ii) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law, (iv) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right, (v) contain a virus or other harmful component, or (vi) constitute or contain false or misleading indications of origin or statements of fact. IBIS may report any activity it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. To cooperate with governmental requests, to protect IBIS's systems and users, to ensure the integrity and operation of IBIS's business and systems, or in response to subpoenas, court orders, or legal requirements, IBIS may access and disclose any information it considers necessary or appropriate, including user contact details, IP addressing and traffic information, posted content, and Web usage paths. By using the Service you expressly consent to the foregoing use and disclosure.
APPLICABLE LAW; JURISDICTION AND VENUE
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the Federal Arbitration Act, without giving effect to any principles of conflicts of laws, and you hereby consent to the personal jurisdiction of the state and federal courts of Virginia.
ARBITRATION
You and IBIS agree any and all disputes and claims relating in any way to this Agreement (including the arbitrability of any claim or dispute and the enforceability of this paragraph), with the exception set forth in the next paragraph, shall be submitted to and resolved by means of confidential arbitration conducted in the Commonwealth of Virginia, City of Richmond. The arbitration shall be conducted under the then prevailing Commercial Arbitration Rules of the American Arbitration Association ("AAA"). You and IBIS may litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby excluded. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other current or former user of the Service, whether through class arbitration proceedings or otherwise. However, to the extent you have in any manner violated or threatened to violate IBIS's intellectual property rights, IBIS may seek injunctive or other appropriate relief in any state or federal court in the Commonwealth of Virginia, and you consent to exclusive jurisdiction and venue in such courts.
GENERAL PROVISIONS
Entire Agreement
This Agreement, which includes the IBIS Privacy Policy, constitutes the entire agreement of the parties with respect to the subject matter hereto and supersedes and cancels all prior and contemporaneous agreements, claims, representations and understandings of the parties in connection with the subject matter, hereof, oral or written.
Severability
If any provisions of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
No Waiver
IBIS's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of IBIS's right to subsequently enforce such provisions or any other provisions of this Agreement. No waiver of any provision of this Agreement shall be effective unless in writing.
Survivability
All provisions of this Agreement relating to ownership of intellectual property and proprietary rights, warranty disclaimers, limitation of liability, and indemnification shall survive the termination of your use or access to the Service, for whatever reason.
Injunctive Relief
You acknowledge that your violation of the provisions relating to intellectual property and proprietary rights may cause damage to IBIS which is unquantifiable but nonetheless real and irreparable. Accordingly, in the event IBIS determines in its sole discretion that you have violated or will violate any such provision, IBIS will be entitled to injunctive relief from a court of competent jurisdiction restraining such violation. This right to injunctive relief shall be cumulative and shall not restrict or limit IBIS's ability to resort to any other remedy available under law or equity.
Remedies
IBIS's specific remedies set forth under this Agreement for any breach by you of this Agreement or otherwise shall be cumulative and shall not restrict or limit IBIS's ability to resort to any other remedy available under law or equity.
Any rights not expressly granted herein are reserved.
New.net Software Use Agreement
This Software Use Agreement (this "Agreement" governs your use of the software produced by or on behalf of New.net, Inc. ("New.net") which you are installing or install (including any updates, enhancements or upgrades thereto) (the "Product"). Please read this Agreement carefully because it constitutes a legally binding contract between you and New.net and governs your use of the Product. In addition, should you choose to access and/or use New.net's web site which has its homepage located at www.new.net (the "Site"), such access and use will be governed by the Site's policies and agreements in effect at that time.
1. Address and Contact Information. New.net is a Delaware corporation. New.net's business address is: 76 N. Fair Oaks, Pasadena, CA 91103. You may send email to New.net at info@new.net.
2. Acceptance of Terms, Agreement. By installing the Product, you agree to be bound by all of the terms and conditions stated in this Agreement . If you do not wish to be bound by this Agreement, you must not install or otherwise access the Product. New.net may amend this Agreement at any time without notice and such modifications shall be deemed effective immediately upon posting on the Site the modified terms or this Agreement as so modified. You should review the Site from time to time to look for any such modified terms. Your continued access to or use of the Product shall be deemed conclusive acceptance by you of the modified terms of this Agreement. If any changes or modifications to this Agreement are unacceptable to you, you must cease using the Product. Should a conflict between this Agreement as set forth here and this Agreement as posted to the Site arise, you understand and agree that the Agreement as posted on the Site will control and govern your use of the Product.
3. Rights; Restrictions; Ownership. This Agreement allows you to use the Product. New.net grants to you a nonexclusive, nontransferable, royalty-free license permitting you to download and install the Product solely for your personal use. The rights granted to you by New.net shall not be assigned, sublicensed or otherwise conveyed or transferred by you to any other person, organization or entity. Any rights not expressly granted to you herein by New.net are reserved. You shall not decompile, reverse engineer, disassemble, or otherwise reduce the Product to a human-perceivable form. You shall not modify, sell, rent, transfer, resell, distribute, duplicate, reproduce, copy, license or modify, or create derivative works based upon, the Product or any part thereof. You will not export or re-export, directly or indirectly, the Product into any country prohibited by the United States Export Administration Act and the regulations thereunder. The foregoing license gives you limited rights to use the Product. You do not become the owner of the Product. As between you and New.net, New.net retains all title to the Product and all copies thereof. All rights not specifically granted in this Agreement are reserved by New.net. You acknowledge and agree that New.net holds all rights to, title to and interest in all tangible and intangible incidents of the Product, including all patents, copyrights and trade secrets pertaining thereto, and that this Agreement conveys to you only a limited right to access and use the Product. You acknowledge that the Product, including, without limitation, all code therein, contains proprietary and confidential information, are owned by New.net, and are protected by applicable intellectual property and other laws. You shall not infringe or violate any such rights or laws.
4. Automatic Update Feature. The Product may automatically communicate with New.net's, or third party's, servers on the Internet to check for and install updates to the Product, such as bug fixes, patches, enhanced functions, and new versions. You consent to your receipt and installation of all of the foregoing and agree that all of the foregoing shall be governed by this Agreement, unless other terms are provided with the update.
5. Content. You understand that all content, including, without limitation all data, links, articles, graphic or video messages and all information, text, software, music, sound, graphics or other materials ("Content") made available through the Product, whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. You understand and agree that by using the Product you may be exposed to Content that is offensive, indecent or objectionable. You agree that you must evaluate and bear all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content. Under no circumstances will New.net be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for loss or damage of any kind incurred as a result of the use of any Content posted or transmitted via the Product.
6. Privacy. New.net does not collect any Personally Identifiable Information about you via the Product. "Personally Identifiable Information" means information that would allow the collector to determine, without reference to any other information, your name, address or telephone number. However, New.net may collect non-personally identifiable technical or distribution information that may include, without limitation, information regarding your Internet service provider, the IP address or other source from which the Product was downloaded or installed, and certain operating metrics such as which Product number belongs to your Product.
7. Modifications to Product or Site; Termination. New.net has the right at any time to disable, modify or discontinue, temporarily or permanently, the Site or the Product (or any part thereof), or the term of the license granted by this Agreement, with or without notice or obligation to you or any third party. You agree that New.net shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, the Product or any license.
8. THIRD PARTIES. YOU AGREE AND UNDERSTAND THAT ANY THIRD PARTY SOFTWARE, INCLUDING ANY THIRD PARTY'S PLUG-IN, THAT MAY BE PRO VIDED WITH THE PRODUCT IS INCLUDED FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, THEN SUCH USE SHALL BE GO VERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT OR OTHER CONTRACT. NEW.NET IS NOT RESPONSIBLE FOR ANY THIRD PARTY'S SOFTWARE, PRODUCT S, OR SERVICES AND SHALL HAVE NO LIABILITY FOR YOUR USE OF THIRD PARTY SOFTWARE, PRODUCTS, OR SERVICES.
9. WAIVER OF CLAIMS; LIMITATION OF LIABILITY; NO WARRANTIES. BY INSTALLING, DOWNLOADING OR USING THE PRODUCT, YOU HEREBY AND FOREVER WAIVE ANY AND ALL CLAIMS YOU HAVE NOW OR MAY HAVE IN THE FUTURE AGAINST NEW.NET RELATING TO YOUR DOWNLOAD, INSTALLATION OR USE OF THE PRODUCT. YOU HEREBY WAIVE ANY CLAIM THAT THE FOREGOING LIMITATION OF LIABILITY DEPRIVES YOU OF AN ADEQUATE REMEDY. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PRODUCT IS TO STOP USING THE PRODUCT. YOU SPECIFICALLY AGREE THAT NEW.NET SHALL NOT BE LIABLE FOR LOSSES OR LIABILITIES ARISING IN CONNECTION WITH YOUR DOWNLOAD, INSTALLATION OR USE OF THE PRODUCT, INCLUDING, BUT NOT LIMITED TO LOSS OR LIABILITY: (A) ARISING IN CONNECTION WITH SOFTWARE CONFLICTS RELATED TO THE PRODUCT; (B) RESULTING FROM DATA NON-DELIVERY, DATA MIS-DELIVERY OR UNAUTHORIZED ACCESS TO TRANSMISSIONS OR DATA; (C) ARISING IN CONNECTION WITH YOUR INFRINGEMENT OF A THIRD PARTY'S RIGHT; OR (D) RESULTING FROM DEFECTS OR VIRUSES IN, OR DISTRIBUTED WITH, THE PRODUCT. WITHOUT LIMITING THE FOREGOING, NEW.NET SHALL NOT BE LIABLE TO YOU FOR ANY ACTUAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF OR RE LATING IN ANY WAY TO THE PRODUCT OR THIS AGREEMENT, IRRESPECTIVE OF WHETHER YOU HAVE ADVISED NEW.NET OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. THE PRODUCT IS PROVIDED "AS IS" AND "AS AVAILABLE" WITH NO TECHNICAL SUPPORT OR REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, TITLE AND NON-INFRINGEMENT.
10. Indemnification. You agree to release, indemnify, defend and hold harmless New.net, its parent, shareholders, subsidiaries, affiliates, officers, directors, employees, agents and advisors, from and against any and all losses, liabilities, claims (including claims without legal merit or brought in bad faith), demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions and liens, including reasonable attorneys' fees and costs (whether brought by third parties or otherwise) due to or arising out of your use, installation or download of the Product or your breach of this Agreement. New.net reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and in such event, you shall have no further obligation to provide indemnification for such matter.
11. Notice to Government End Users. The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. 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.
12. Limited Distribution and Territorial Considerations. New.net controls and operates the Product from its offices within the State of California, U.S.A., and all transactions conducted regarding the Product are conducted in the State of California. New.net makes no representation that materials in the Product are appropriate or available for use in other locations. Those users who choose to access the Product from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. European Union users understand and consent to the processing of personal information (if any) in the United States. Use of or access to the Product should not be construed as the purposeful availment of the benefits or privilege of doing business in any state other than the State of California by New.net.
13. General Provisions. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. If no enforceable provision can be substituted, then that provision shall be deemed severable from the Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of California, without regard to conflicts of law principles. With respect to all matters pertaining to this Agreement or the Product, you shall bring all actions, and you consent to jurisdiction, in either the state or federal courts located in Los Angeles County, California. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Use of the Product is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph.