Claria's License Agreement - As Copied from Kazaa Installer,
Claria's License is 56 Pages Long and Gator's EULA Gone Bad - Ben Edelman
This page preserves the plain text of Gator's End User License Agreement, as shown by the Kazaa installer as of November 2004. See also screenshots of Kazaa's installer in June 2004.
As shown on screen by Kazaa, Gator's current license requires 63 on-screen pages (62 presses of the page-down key) to view in full. Prior versions of the Kazaa installer included a "Printable Version" link, opening the license in a text editor for easy printing, searching, and viewing in a resizable window (screenshot). However, in my testing the current version of Kazaa included no such feature (screenshot).
GAIN Network Step 2 of 4
This free copy of Kazaa Media Desktop is supported by advertising delivered by the GAIN Network and other partners. The GAIN Network delivers online advertisements which are selected in part based on how you surf the Web. GAIN Network ads include the GAIN name and/or logo, so you'll know they're delivered by the GAIN Network - not by any website.
GAIN Network Privacy Statement and License Agreement
PLEASE READ THE GAIN PUBLISHING PRIVACY STATEMENT AND END USER LICENSE AGREEMENT (COLLECTIVELY "Terms and Conditions") CAREFULLY AND MAKE SURE YOU UNDERSTAND THEM. THEY CONTAIN IMPORTANT INFORMATION THAT YOU SHOULD KNOW BEFORE ACCEPTING THIS SOFTWARE.
The GAIN Publishing Terms and Conditions describe the operation of the GAIN AdServer software (defined below) you are about to download and the terms and conditions that govern your use of this software. These Terms and Conditions apply only to the GAIN AdServer distributed with the Kazaa Media Desktop and do not supercede or modify the Terms and Conditions applicable to other GAIN-Supported Software (defined below) that may be currently or subsequently installed on this computer. For a list of GAIN-Supported Software on this computer, see http://webpdp.gator.com/gain/kmd/60/about-gain-01.html, incorporated herein by reference that generates a list of GAIN- Supported Software that resides on the computer that is used to access the link.
GAIN Publishing ("GP") provides you the opportunity to download a software product you desire at no charge or a reduced charge in return for your agreement to also download GP's software product which will periodically deliver advertisements and promotional messages to your computer based, in part, on your interests as shown by the some websites you view. These ads and promotional messages may be displayed on your computer screen at any time while you are online, however, they will not be displayed in the Kazaa Media Desktop window. To see representative full-size examples of each type of advertisement that may be displayed, and the frequency with which each type of advertisement may be displayed, direct an Internet browser to http://www.gainpublishing.com/about/kmd/60/index.html, incorporated herein by reference. Before you may download and install these software products, you must agree to the terms and conditions described below.
If you would like to stop receiving GAIN-branded advertisements, you will need to remove all GAIN-Supported Software on your computer using the Add/Remove Programs menu in the Microsoft Windows Control Panel. http://webpdp.gator.com/gain/kmd/60/about- gain-01.html, incorporated herein by reference, generates a list of GAIN-Supported Software that resides on the computer that is used to access the link. Soon after all GAIN-Supported Software has been removed, the GAIN AdServer will remove itself automatically. Using the Add/Remove Programs menu is the only authorized means to uninstall GAIN-Supported Software and the use of any other means may not result in the un-installation of GAIN-Supported Software.
GAIN Publishing and GAIN Network are business units of Claria Corporation (formerly known as The Gator Corporation).
Privacy Statement and End User License Agreement ('Terms and Conditions')
--- Privacy Statement --- Introduction GAIN Publishing ('GP') and the GAIN Network provide personal computer users with a valuable proposition: the ability to obtain Kazaa Media Desktop software, valued at up to $30, free-of-charge or at a reduced cost in exchange for users' agreement to accept advertising and other promotional messages delivered by the GAIN Network to users' personal computers. These ads and promotional messages may be displayed on computer screens at any time while users are online, however, they will not be displayed in the Kazaa Media Desktop window. Downloading or installing this ad-supported software application requires acceptance of these Terms and Conditions which allows GP to download and install the 'GAIN AdServer' software. GAIN AdServer software, described in detail below, delivers 'GAIN' branded advertising, and various informational or promotional messages to computer screens while users view Internet Web pages ('GAIN Ads'). The "GAIN Network" is an advertising network that delivers advertisements from the GAIN Network's advertising clients to users of GAIN Supported Software, defined below ("Subscribers").
The GAIN AdServer is patent-pending technology that identifies the interests of anonymous Subscribers based on some of their computer usage and some of their web surfing behavior, including the URLs of Web pages viewed by Subscribers and other criteria as set forth in this Privacy Statement but which does not collect ANY personally identifying information. The GAIN AdServer displays GAIN Ads on computer screens on behalf of the GAIN Networks' advertising clients and not on behalf of the Web site the Subscriber may be viewing when the ad appears. The GAIN Network's advertising clients may be competitors of the publishers whose Web pages Subscribers may be viewing, or may have recently viewed. GAIN Ads are distinguishable from other ads or messages because all GAIN Ads contain the trademark "GAIN" in the title bar and/or the GAIN logo in the ad.
GAIN-Supported Software includes both software applications published by GP (GP GAIN-Supported Software), as well as software applications developed by other companies (Third Party GAIN- Supported Software); At any time, you can see a list of all GAIN- Supported Software residing on a computer by directing that computer's Internet browser to http://webpdp.gator.com/gain/kmd/60/about-gain-01.html.
Unless otherwise specified, these Terms and Conditions constitute your agreement with GP for use of the GAIN AdServer software.
The Details We don't know who our users are... GP does not know the identity of GAIN-Supported Software users (GP's "Subscribers"). We do not transmit to our servers personally identifiable information like email addresses, last name, street addresses, or phone numbers. Nor do we have any other sensitive or personal financial information, such as credit card numbers, login IDs, passwords or bank account numbers.
Here's what we do know... While we don't know the identity of Subscribers, the GAIN AdServer and GP collect the following kinds of anonymous information:
- Some of the Web pages viewed - The amount of time spent at some Web sites - Some click history including responses to online ads - Standard web log information and system settings (except that IP addresses are not stored) - Non-personally identifiable information on Web pages
For more information, http://www.gainpublishing.com/help/psdocs/kmd/60/datause.html, incorporated herein by reference, provides a more detailed description of the information collected by GP and how it is used.
Here's what we do with it We associate the anonymous information we collect with a particular computer through a randomly generated Anonymous ID number to create an anonymous profile of: (a) the categories of products or services in which Subscribers appear to be interested; and (b) inferences regarding certain anonymous Subscriber demographics, such as, gender, age, marital status, postal/ZIP code, etc. We use this anonymous profile in order to select GAIN Ads to display to Subscribers' computer screens and to make GAIN Ads more interesting and relevant to Subscribers.
GAIN Ads may be displayed on behalf of advertisers who may be competitors of the publishers of the Web pages you are viewing or have recently viewed.
Any information provided to any GP employees or contractors, such as our technical support department, may be stored on our servers in archives of our support and customer service department. This information, however, will not be associated with the information we may store and use listed above.
We share certain anonymous information we collect in aggregated form with some of our partners and prospective partners. For example, we might tell a merchant that we have 50,000 Subscribers who buy books. We do not disclose information associated with any individual Subscribers to partners (or anyone else). Our partners may use this anonymous aggregated information to improve their services, and may, in some cases, share this anonymous aggregated information with third parties such as their customers.
We sometimes use third party contractors who may be given access to any non-personally identifiable information we have so they may perform tasks that might otherwise be done by our employees. These contractors, however, have no rights to use such information for purposes other than those described herein; and they are subject to the same restrictions as our employees. In the event that GP merges with another company, transfers or sells substantially all of its assets or capital stock to a third party, all collected information would be included in the merger, transfer or sale and that company would be bound by these Terms and Conditions just as we are bound today.
If legally required to do so, we will disclose to a third party any information we have.
GAIN Ads contain the GAIN name and/or logo... GAIN Ads contain the name 'GAIN' in the title bar and/or the GAIN logo in the advertisement. The GAIN brand is displayed to inform Subscribers that GAIN Ads come from GP via the GAIN Network and are not associated, sponsored, or affiliated in any way with any other Web pages being viewed by Subscribers. The logo and/or GAIN name distinguishes GAIN Ads from all other advertisements.
How we display GAIN Ads GAIN Ads will only be displayed on a computer's screen or storage media if one or more GAIN-Supported Software programs reside on that computer. Many GAIN Ads are displayed on computer screens on behalf of advertisers who compete with the company whose Web pages Subscribers may be viewing or may have recently viewed.
GP displays GAIN Ads on computer screens in a variety of ways. The GAIN Ad formats we may use include, among others, the following:
- Pop-Up Windows appear as windows on top of or beneath other windows on the computer screen. - Pop-Up Slider Windows appear as floating images on top other windows on the computer screen.
http://www.gainpublishing.com/about/kmd/60/index.html incorporated herein by reference, more fully describes some of these GAIN Ad formats.
How to Control the Display of GAIN Ads... Some GAIN ad formats offer Subscriber preference settings that allow Subscribers to control some aspects of the display of GAIN Ads. These Subscriber preference settings may be found by clicking on the question mark (?) box at the top right of the title bar of certain GAIN Ads.
How to Stop the Display of GAIN Ads To stop GAIN Ads from being displayed one must remove all of the GAIN-Supported Software applications residing on the computer using the Add/Remove Programs menu in the Microsoft Windows control panel. Subscribers can view a list of all GAIN-Supported Software on their computer, along with removal instructions, in a variety of locations including: (i) through the start, programs, GAIN, About GAIN menu entry (via a hypertext link), (ii) by clicking on the question (?) box at the top right of the title bar of certain GAIN Ads, and (iii) via GP's web site http://webpdp.gator.com/gain/kmd/60/about-gain-01.html.
How the GAIN AdServer Works When running on a computer, the GAIN AdServer regularly communicates with GP servers, and in some cases, third party servers, among other reasons, to:
1. maintain/update the GAIN AdServer; 2. facilitate installing and removing the GAIN-Supported Software or the GAIN AdServer; 3. retrieve content and ads for display; 4. facilitate various GAIN AdServer features as contained in this Privacy Statement; and/or 5. collect anonymous Subscriber computer usage information as contained in this Privacy Statement.
http://www.gainpublishing.com/help/psdocs/kmd/60/communications. html, incorporated herein by reference, provides more detail regarding communications between a computer and other computers arising from use of the GAIN AdServer.
- To identify the business associate that was responsible for introducing GAIN-Supported Software so that we can pay that business associate a fee which is why the software is available to Subscribers for free; - To assist us in identifying Subscribers who have purchased a license to GAIN-Supported Software; - To identify the GAIN-Supported Software on the computer; and/or - To limit how often we display GAIN Ads.
In order to enable authorized third parties to display targeted ads and informational messages on our behalf, the GAIN AdServer may read cookie information that those third parties stored on the computer. That information may be sent to our servers so that we can include it in advertisement display requests that we send to those third parties. Please note that when any third party service providers, such as ad serving companies, set and access cookies at our request, they do so in accordance with their own privacy statements.
http://www.gainpublishing.com/help/psdocs/kmd/60/thirdparties.html, incorporated herein by reference, provides a list of any third parties who set and access cookies on the computer in order to facilitate a feature or service associated with GAIN-Supported Software. This list also includes links to their privacy statements.
Third party service providers that serve ads to Internet users, at our request, may use web beacons. Some GAIN Ads include "web beacons," which allow third party service providers to access cookies on a computer to target ads and provide campaign analysis for their clients who use our services. Some third party service providers who access cookies in this way allow Internet users to opt-out of their use of these cookies.
http://www.gainpublishing.com/help/psdocs/kmd/60/naisite.html, is a third party Web site that allows Internet users to inform some advertisers they wish to revoke the right of those advertisers to access cookies on a computer.
Some third parties offer visitors the opportunity to download GP GAIN-Supported Software from their Web sites. GP hosts some of the Web pages for these third parties. We use web beacons on these pages to count the number of people who have viewed these pages so that we can pay the third parties for any downloads of GP GAIN-Supported Software that originate from their Web sites.
How do we use optional surveys? From time to time, we may display a GAIN branded pop-up advertisement from Feedback Research, a division of GP, inviting Subscribers to join a survey panel or participate in a survey. A survey panel is a group of people that meet a certain criteria that are periodically asked for their opinions. Participation in a survey panel is completely voluntary and optional.
Eligibility for joining a panel or taking a survey may require a person to answer demographic 'screening' questions such as gender, age, employment status, income range, educational level, head of household, the number of people in their family, and/or whether they own or rent their home. Answers to these screening questions and/or to the Feedback Research survey questions are often stored on Feedback Research servers, and anonymous individual responses to these questions may be provided to our clients. Answers to both screening questions and survey questions may be associated with an Anonymous ID, but not with a Subscriber's identity which remains unknown to Feedback Research and GP.
Finally, Feedback Research may offer Subscribers the opportunity to provide an email address in order to enter a sweepstakes. The sole purpose of collecting this email is to contact them if they win. To ensure their privacy, any email address provided to Feedback Research for this reason are sent directly to a third party contractors' servers to ensure they are stored separate from, and cannot be associated in any way with, Anonymous IDs or the answers to Feedback Research screening or survey questions.
Changes to our Privacy Statement and End User License Agreement If these Terms and Conditions change in the future, we will not, collect, use, or store any personally identifiable information without first obtaining permission. As we issue subsequent revisions to these Terms and Conditions that do not involve personally identifiable information, we will provide notice by displaying an online pop-up message. We will also continue to publish the current Terms and Conditions on our web site. If GP merges or is acquired by another company (a "Purchaser"), or all or substantially all of its assets are purchased by another company (an "Asset Purchaser"), the information that GP collects as described in this Privacy Statement will be transferred to and owned by the Purchaser or the Asset Purchaser as the case may be.
For support questions contact us at firstname.lastname@example.org .For specific questions regarding the specific terms of these Terms and Conditions, contact us at email@example.com.
--- End User License Agreement ("Agreement") ---
Terms defined in the GP Privacy Statement used in this Agreement will retain the definition provided in the GP Privacy Statement. The GAIN AdServer, any Web sites owned and operated by us, and any content available therefore shall be collectively referred to as "GP Supplied Materials."
Ownership; All Users of This Computer Bound You represent and warrant that you are the owner of the computer and that you have authorized the download and installation of the GAIN AdServer and GAIN-Supported Software, or that the owner of the computer has authorized you to do so. You agree, with respect to all other users of the computer that you have caused the GAIN AdServer and GAIN-Supported Software to reside, to (i) provide a copy of the GP Privacy Statement and End User License Agreement; and (ii) to obtain their consent to same before allowing them to use the computer to view Web sites on the Internet. Alternatively, if you have the legal right to accept this Agreement on behalf of one or more users of the computer that you have caused the GAIN AdServer and GAIN-Supported Software to reside, then you hereby accept this Agreement on behalf of all such other users. Also, you agree not to use the GAIN AdServer, or GAIN-Supported Software, in a manner prohibited by law, or in violation of any contractual provision by which you are bound. You agree to comply with all applicable laws, rules and regulations in your use of the GAIN AdServer and GAIN-Supported Software.
Access and Interference You agree that you will not use, or encourage others to use, any unauthorized means for the removal of the GAIN AdServer, or any GAIN-Supported Software from a computer. For a list of authorized means for the removal of GAIN-Supported Software, view http://webpdp.gator.com/gain/kmd/60/about-gain-01.html. You also agree that you will not use, or encourage others to use, any robot, spider, other automatic or non-automatic manual device or process intended to interfere or attempt to interfere with the proper working of any GP Supplied Materials, or third party GAIN-Supported Software. You agree not to use any means to avoid the display of any GAIN Ads while retaining the ability to use any GAIN-Supported Software other than purchasing a license to all GAIN Supported Software.
Voluntary Software and Right to Remove You understand and agree that the presence of any GAIN-Supported Software on any computer is voluntary and that you may remove any of them from your computer at any time. To stop receiving GAIN Ads every GAIN-Supported Software program residing on the computer must be removed or, alternatively, replaced with a paid version of that GAIN-Supported Software program. Subscribers can view a list of all GAIN-Supported Software on their computer, along with instructions for its removal, in a variety of locations including: (i) through the start, programs, GAIN, About GAIN menu entry (via a hypertext link), (ii) by clicking on the question (?) box at the top right of the title bar of certain GAIN Ads, and (iii) via GP's web site at http://webpdp.gator.com/gain/kmd/60/about-gain-01.html, incorporated herein by reference. To remove a GAIN-Supported Software program from a computer, you must use the Microsoft Windows Add/Remove Programs menu in the Microsoft Windows Control Panel. Shortly after every GAIN Supported software program is removed, the GAIN AdServer will remove itself automatically.
Termination These Terms and Conditions may be terminated at any time, by any user, by removing all GAIN-Supported Software from the computer using one or more of the above described removal methods and destroying any other copies of the GAIN AdServer and GAIN-Supported Software you may have made.
GP Supplied Materials and GAIN Ads that are displayed on a computer screen may contain links to web sites operated by other parties. These linked web sites are not under the control of GP, and GP is not responsible for the content available on any other Internet sites so linked. Unless otherwise stated, such links do not imply GP's endorsement of material on any other web site. Access to any other Internet sites linked as herein described is at the users own risk.
Unless otherwise set forth in a written agreement between you and GP, in order to link to one or more of GP's Web Site(s) you must adhere to GP's linking statement as follows: (i) any link to GP's Web Site must be a text only link clearly marked "GAIN Publishing Web Site," (ii) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with GP's names and trademarks, (iii) the link must "point" to the URL http://www.gainpublishing.com/ and not to other pages within GP Web Site, (iv) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with GP, the Claria Corporation, the GAIN Network, or Feedback Research, (v) when selected by a user, the link must display the GP Web Site on full-screen and not within a "frame" on the linking web site, and (vi) GP reserves the right to revoke its consent to the link at any time and in its sole discretion.
Scope of License GP grants you a non-exclusive, limited license, pursuant to the terms hereof, to only (a) install and use the most current versions of GAIN AdServer solely for the purpose of accessing and using GAIN-Supported Software available through our Web site or servers, or the Web sites and servers of our business associates, and (b) use the GAIN AdServer in the ordinary manner for which the it was designed as provided in the user 'Help' screens, frequently asked questions, on GP's Web sites, or in other GP supplied product usage documentation and only for your personal, non-commercial purposes.
Updates and Upgrades GP may from time to time, either automatically or through other means, distribute an update to the GAIN AdServer and/or may replace the GAIN AdServer with newer versions thereof and/or otherwise modify or add to the GAIN AdServer. Your license to an existing version of the GAIN AdServer may, at GP's discretion, expire when new versions of the GAIN AdServer is released. When installed on your computer, the GAIN AdServer communicates with GP or third party servers as described in the GP Privacy Statement. Additionally, GP may require the update or automatic distribution of the GAIN AdServer on your computer when a new version of the GAIN AdServer is released to the general public, when new features are available, to display promotional offers, and/or to add new applications to the applications that comprise the GAIN AdServer. This update or new download may occur automatically or through other means. You understand that GP and/or one of our business associates may require your review and acceptance of GP's or their then current privacy statement and/or license agreement before you will be permitted a limited license to any subsequent versions of the GAIN AdServer. Notwithstanding the foregoing, GP and its business associates have no obligation to make available to you any subsequent versions of the GAIN AdServer.
License Restrictions You may not access or use the GAIN AdServer other than through the graphical user interface provided with the GAIN AdServer, if any, and you are prohibited to access or cause the operation of the GAIN AdServer through the use of any type of high-volume, automated, or electronic processes. You may not distribute or copy (other than for backup purposes) the GAIN AdServer. You may not, and you agree not to attempt or allow others to attempt to, modify, reverse-engineer, decompile, disassemble, or otherwise discover the GAIN AdServer or equivalents of the GAIN AdServer including but not limited to GP's technology and methodology for delivery of advertisements and the content of any and all of GP's communications and content stored on GP's servers, or to access or modify the GAIN AdServer's source code in any way. You do not have the right to create derivative works of the GAIN AdServer and any and all such modifications or enhancements to the GAIN AdServer are the sole property of GP or its business associates. You further agree not to access GP or GP business associate services or software application by any means other than the interface provided by GP or such business associate to access the relevant service. You acknowledge and agree that any and all communications between GP and the GAIN AdServer and the content stored on GP's computer servers and in its software includes confidential information of GP and you may not access, publish, transmit, display, create derivative works of, store, or otherwise exploit any such confidential information except as such functions are performed by the GAIN AdServer in the ordinary course of operation. Any use of a packet sniffer or other device to intercept or access communications between GP and the GAIN AdServer is strictly prohibited. Without limiting GP's rights, you understand that GP, in its discretion, may modify, discontinue, or suspend your right to access any of the GAIN AdServer at any time; provided, however, in the event that GP makes such modification, discontinuance, or suspension of your right to access any of the GAIN AdServer, you may terminate your obligation to receive GAIN Ads, and this Agreement, by removing all GAIN Supported Software as provided hereunder.
GP reserves all rights in the GAIN AdServer not expressly granted to you in this Agreement. Some states may restrict or regulate your use of the Licensed Materials. Direct an Internet browser to http://www.gainpublishing.com/help/psdocs/kmd/60/stateregs.html for more information on this topic.
Important Messages GP may display important messages to Subscribers in certain regions or States and may use your computer's time zone settings to determine which Subscribers should see such messages. To ensure that you receive those messages, you hereby represent that your computer's the time zone settings accurately reflect the physical location of your computer.
Other Restrictions You may not rent, lend, assign, or lease the GAIN AdServer, but you may transfer your rights under these Terms and Conditions on a permanent basis provided (i) such transfer is permitted under your agreement with the publisher of the GAIN-Supported Software, (ii) you transfer all copies of the GAIN-Supported Software application and the GAIN AdServer and these Terms and Conditions; and (iii) the recipient agrees to be bound to these Terms and Conditions. Any transfer must include the most recent product upgrade. Prior to transferring the GAIN-Supported Software application and GAIN AdServer you must remove the GAIN-Supported Software application and GAIN AdServer to be transferred from your machine.
Ownership You agree that the GAIN AdServer is licensed, not sold to you. You agree that the GAIN AdServer belongs to GP, including all intellectual and proprietary rights, unless otherwise specified. GP retains all right, title and interest in and to the GAIN AdServer at all times, and regardless of the form or media in or on which the original or other copies may subsequently exist. Additionally, all content accessed through the GAIN AdServer is the property of the applicable content owner and may be protected by applicable intellectual property laws. This Agreement gives you no rights to such content. Finally, any suggestions, ideas or inventions that you voluntarily and optionally disclose to us through any means will be used, or not used, by GP at GP's sole discretion; and, GP will have no obligation to you regarding any ideas or inventions that you disclose through such means.
Disclaimer of Warranty USE OF GP Supplied Materials IS AT YOUR OWN RISK. GP PROVIDES GP Supplied Materials ON AN "AS IS," "WHERE IS," BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR NON-INFRINGEMENT. GP ALSO DISCLAIMS ALL LIABILITY WITH REGARD TO YOUR VIEWING OF ANY WEB SITES THAT MAY BE LINKED FROM ANY GP SUPPLIED MATERIALS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. GP MAKES NO WARRANTY THAT (i) THE GP Supplied Materials ARE ACCURATE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE GP Supplied Materials WILL BE RELIABLE; (iii) THE GP Supplied Materials WILL IDENTIFY ANY IDENTITY THEFT, (iv) THE QUALITY OF ANY PRODUCTS OBTAINED OR PURCHASED THROUGH THE USE OF THE GP Supplied Materials WILL MEET YOUR EXPECTATIONS; OR (v) ANY ERRORS IN THE GP Supplied Materials WILL BE CORRECTED. The above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied warranties.
Limitation of Liability IN NO EVENT WILL GP, DISTRIBUTORS, DISTRIBUTEES, SUPPLIERS, MERCHANT BUSINESS ASSOCIATES, ADVERTISERS, THIRD PARTY DEVELOPERS OR DISTRIBUTORS OF GAIN-SUPPORTED SOFTWARE, OR ANY OF THE FOREGOING ENTITIES OFFICERS, DIRECTORS, EMPLOYEES, OR AGENT (COLLECTIVELY "Protected Parties") BE LIABLE FOR ANY INDIRECT DAMAGES, INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF GP PRIVACY STATEMENT, END USER LICENSE AGREEMENT, OR YOUR USE OR INABILITY TO USE the GAIN AdServer, any GAIN-Supported Software, OR GP Supplied Materials EVEN IF A Protected Party HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Protected Parties MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT, OR GP PRIVACY STATEMENT, EXCEED THE LESSER OF $100 OR THE REVENUE ACTUALLY RECEIVED BY GP DIRECTLY ATTRIBUTABLE TO THE GAIN AdServer.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Protected Parties liability shall be limited to the extent permitted by law.
No Protected Parties Liability Protected Parties assume no liability hereunder for, and shall have no obligation to defend you or to pay costs, damages or attorneys' fees for, any claim arising from: (i) any method or process in which GAIN-Supported Software or the GAIN AdServer may be used by you; (ii) any results of using GAIN-Supported Software or the GAIN AdServer; (iii) any use of other than a current unaltered release of the GAIN AdServer; or (iv) the combination, operation or use of any the GAIN AdServer furnished hereunder with other software programs, data or materials if such infringement would have been avoided by avoidance of the combination, operation, or use of the GAIN AdServer with other programs, data, or other materials.
Privacy Statement and Other Policies You agree to be bound by and comply with the GP Privacy Statement applicable to any GAIN-Supported Software, the privacy statements applicable to third party GAIN-Supported Software, and any other policies governing the use of GP Supplied Materials for which, as appropriate, you have accepted via a click-thru agreement; or have been provided notice. Visit http://www.gainpublishing.com/help/psdocs/kmd/60/thirdparties.html to view a list of any third parties, if any, who set and access cookies on your computer in order to facilitate a feature or service of the GAIN AdServer or GP GAIN-Supported Software. This list will also include links to their privacy statements.
Export Controls The GAIN AdServer, GAIN-Supported Software, and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Sudan, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the GAIN AdServer or GAIN-Supported Software, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws.
Applicable Law The laws of the State of California will govern this Agreement, without reference to conflicts of law principles. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the state and federal courts in Santa Clara or San Mateo County, California. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement.
Arbitration Any claim or controversy arising out of or related to these Terms and Conditions, the GAIN AdServer, GP Supplied Materials, or any GAIN-Supported Software shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. The foregoing shall not preclude GP from seeking any injunctive relief in State or Federal courts for protection of GP's intellectual property rights.
Successor Agreements These Terms and Conditions may change in the future. In such case, and when appropriate, GP will obtain your consent prior to the new document going into effect.
In most cases, GP will provide you with an on-line pop-up window notice informing you that changes have been made to the documents and will provide you either with an active link, or inactive URL address, that you can use to view a web page containing the revised documents (or leading you to the appropriate documents). GP will always post its most recent Privacy Statement and End User License Agreement on GP's web site that can be accessed at http://www.gainpublishing.com/help/psdocs/kmd/60/privacy-help.html.
You agree that after receipt of such change notice, you consent to GP's revised Terms and Conditions unless you remove all GAIN-Supported Software from your computer, and destroy all copies of same you may have created. Failure to remove and destroy all GAIN-Supported Software from your computer will be deemed an acceptance of the terms of GP's most current Terms and Conditions for which you have given your consent, or for which you have been given notice, as appropriate. Except as provided in this section, these Terms and Conditions may not be revised except in writing signed by all relevant parties.
U.S. Government Restricted Rights Licensed Materials are provided with Restricted Rights. Use, duplication, or disclosure by the United States Government is subject to restrictions set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
General These Terms and Conditions, as modified from time to time as described above, and including the policies incorporated by reference, sets forth the entire understanding and agreement between you and GP with respect to the subject matter hereof. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected or impaired thereby. GP shall not be liable for any delay or failure in performance under this Agreement or interruption of service resulting from acts of God, civil or military authority, war, labor disputes, materials provided by third parties, or any cause beyond the reasonable control of GP. Except as described herein, you may not assign this Agreement without our explicit consent.
Effective: April 2004
Gator and GAIN are registered service marks of Claria Corporation. GAIN Publishing, GAIN Network, Gator eWallet, Offer Companion, Precision Time, Date Manager, DashBar, and Weatherscope are marks of Claria Corporation. The use of the mark Gator, alone, is strictly prohibited.
Claria Corporation (formerly known as The Gator Corporation) is doing business as GAIN Publishing and GAIN Network.
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