Kazaa Installation - Licenses
P2P Programs Installing Unwanted Software - Ben Edelman
[ Main Kazaa License | Altnet License | Claria License ]
All licenses are as obtained from Kazaa's installer in February 2005. See also graphical presentation of license provisions (showing on-screen presentation).
Main Kazaa License
End User License Agreement
Welcome! It is important that you carefully read these terms before installing the Kazaa Media Desktop software. These terms when accepted by you form a licence ("Licence") agreement between Sharman Networks Limited ("Sharman") and you ("You," "Your" Or "User") for the use of the Kazaa Media Desktop software, including any and all versions or variations of the Kazaa Media Desktop software, and any future fixes, updates and upgrades provided to you (collectively, "Kazaa" or the "Software").
In order to use Kazaa, you must first read and accept the terms of this Licence.
1. What You Can Do Under This Licence
1.1 Subject to all the terms of this Licence, Sharman grants you a limited, non-exclusive, personal, non-sublicensable, non- assignable licence to install and use Kazaa on a computer.
1.2 Unless explicitly stated otherwise, any new features that augment or enhance the current Software, including the release of new properties, shall be subject to terms of this Licence.
2. What You Can't Do Under This Licence
You agree not to use the Software to:
2.1 Transmit or communicate any data that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
2.2 Harm minors in any way;
2.3 Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
2.4 Forge headers or otherwise manipulate identifiers in order to disguise the origin of any data transmitted to other users;
2.5 Transmit, access or communicate any data that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
2.6 Transmit, access or communicate any data that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
2.7 Transmit or communicate any data that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
2.8 Disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
2.9 Interfere with or disrupt the Software; 2.10 Intentionally or unintentionally violate any applicable local, state, national or international law, including securities exchange and any regulations requirements, procedures or policies in force from time to time relating to the Software;
2.11 Monitor traffic or make search requests in order to accumulate information about individual users;
2.12 "Stalk" or otherwise harass another;
2.13 Modify, delete or damage any information contained on the personal computer of any Kazaa user;
2.14 Collect or store personal data or other information about other users; or
2.15 Intentionally make available spoofed files or files with information designed to misidentify the actual content of the file.
3. More Do's and Don'ts
3.1 This Licence allows you to install and use Kazaa on a single computer. This Licence does not permit you to install the Software on more than one computer at a time. You may make copies of the Software in machine-readable form for backup purposes only. The backup copy must include all copyright information contained on the original.
3.2 Except as expressly permitted in this Licence, you agree not to reverse engineer, de-compile, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies, create derivative works from, distribute or provide others with the Software in whole or part, transmit or communicate the application over a network.
3.3 You may not sell, transfer or communicate the Software to any third party without our prior express written consent.
3.4 You may not use, test or otherwise utilize the Software in any manner for purposes of developing or implementing any method or application that is intended to monitor or interfere with the functioning of the Software.
3.5 You may not through the use of any third party software application, alter or modify the values stored by the Software in your computer's memory, on your computer's hard disk, or in your computer's registry, or, with the exception of completely uninstalling the Software, otherwise modify, alter or block the functioning of the Software.
3.6 You may not use unlicensed or unauthorized copies of the Software to obtain information about other users of the Software or for any other purpose.
4. Things You Need To Know When Using Kazaa
4.1 You are responsible for paying all applicable taxes and other costs you may incur in connection with your use of the Software including but not limited to all hardware and software costs and providing all equipment and software necessary to connect to our web site and to use the Software via the Internet and any royalties or other charges relating to the use of data owned by third parties.
4.2 Sharman may from time to time present programming fixes, updates and upgrades to you, including version updates to the Software. You may accept or reject such programming fixes, updates and upgrades to you, including version updates at your sole discretion.
4.3 Installation. When you install the Software, the install program, e.g. kmd260_en.exe, is saved to your My Shared Folder and shared out to other users. You understand and agree that other users may download this file from your computer and by doing so your Internet connection will be used. If you do not want this to happen, you can delete the file or right click the file and select 'Do Not Share This File'.
4.4 My Shared Folder. By saving a file in My Shared Folder, you understand that it will be available for any other user of Kazaa and compatible programs. These users may find your files and subsequently download them from you. By doing so your Internet connection is being used.
The Software provides options regarding sharing:
* To disable sharing go to Tools->Options->Traffic and check Disable Sharing
* To disable sharing of selected files right click the file in My Kazaa and select Stop Sharing this file. The Kazaa program is a "peer-to-peer" program; this means that it communicates with other peers (other Kazaa or compatible programs). Other users may download files that you have stored in the My Shared Folder and other folders you have selected to be shared. Don't share files which are confidential, such as financial information, or which you do not have the right to distribute.
While your copy of Kazaa is communicating with other peers it receives information of the status of interconnected peers, that information is stored on your computer.
4.5 SuperNode. Your copy of the Software may serve as a SuperNode. The selection process is automated. When your computer is a SuperNode other peers will upload an index of files they are sharing to your computer and they will send search queries to your computer. Your computer will reply to these requests and also forward the request to other SuperNodes.
If you do not want to serve as a SuperNode go to Tools -> Options -> Advanced and check 'Do not function as a SuperNode'. When you are a SuperNode your CPU and Internet connection is being used, but not more than 10% of the resources will be used.
5. Things You Need To Do When Using Kazaa
5.1 It is your responsibility to ensure that you obtain all consents, authorisations and clearances in any data owned or controlled by third parties that you transmit, access or communicate to others using Kazaa.
5.2 Sharman will not be liable in any way:
5.2.1 for any errors or omissions in any data, or for any loss or damage of any kind incurred as a result of any data transmitted via the Software; 5.2.2 if you are exposed to data that is offensive, indecent or objectionable; or
5.2.3 for any allegations or findings of infringement of copyright or other proprietary rights as a result of your use of the Software.
6. Copyright Infringement
6.1 Sharman respects copyright and other laws. Sharman requires all Kazaa users to comply with copyright and other laws. Sharman does not by the supply of the Software authorise you to infringe the copyright or other rights of third parties.
6.2 As a condition to use the Software, you agree that you must not use the Software to infringe the intellectual property or other rights of others, in any way. The unauthorised reproduction, distribution, modification, public display, communication to the public or public performance of copyrighted works is an infringement of copyright.
6.3 Users are entirely responsible for their conduct and for ensuring that it complies with all applicable copyright and data- protection laws. In the event a user fails to comply with laws regarding copyrights, other intellectual property rights, data-protection and privacy, such a user may be exposed to civil and criminal liability, including possible fines and jail time.
7. Sharman's Right to Run Advertising without Payment to Users
7.1 Sharman reserves the right to run advertisements and promotions on Kazaa.
7.2 By accepting the terms of this Licence, you agree that we have the right to run such advertisements and promotions without compensation to you.
7.3 The timing, frequency, placement and extent of advertising by us within the pages comprising kazaa.com or Kazaa is subject to change and shall be determined by us at our sole discretion.
7.4 Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through kazaa.com or Kazaa, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser.
7.5 You agree that Sharman is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on Kazaa and/ or kazaa.com.
7.6 You agree, so long as you have not entirely deleted Kazaa from your computer, not to take any action, including downloading other software, to disable or block the display of advertising by the Software.
8. Links to Third-Party Sites and Channels
8.1 Sharman may provide links on Kazaa, kazaa.com or through icons placed on your computer's desktop upon installing the Software ("Icons") to third-party websites, and/or may frame various third-party websites (or frame within such sites) through the Software or on kazaa.com. Third-party websites, including channels, which kazaa.com, Kazaa, or Icons may link to or frame, may have co- branding and other relationships with Sharman that offer e-commerce and other services and features to users, but are not under the control of Sharman. Sharman does not have any responsibility or liability for any information, data, communications, products or materials available on such third-party sites. These linked and framed sites are only for your convenience and you therefore access them at your own risk.
9. Third Party Software
9.1 During the process of installing Kazaa, you must install software from third party software vendors pursuant to licences or other arrangements between such vendors and yourself ("Third Party Software"), including without limitation those software components noted in Section 9.4 below. Please note that the Third Party Software may be subject to different licences or other arrangements, which you should read carefully. By installing and using this Third Party Software you accept these Third Party Software licences or other arrangements and acknowledge that you have read them and understand them. Sharman does not sell, resell, or license any of this Third Party Software, and Sharman disclaims to the maximum extent permitted by applicable law, any responsibility for or liability related to the Third Party Software. Any questions, complaints or claims related to the Third Party Software should be directed to the appropriate vendor.
9.2 SHARMAN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE QUALITY, SAFETY OR SUITABILITY OF THE THIRD PARTY SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SHARMAN BE LIABLE FOR ANY INDIRECT,PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER THEY MAY ARISE AND EVEN IF SHARMAN HAS BEEN PREVIOUSLY ADVISE OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 There are inherent dangers in the use of any software available for downloading on the Internet, and Sharman cautions you to make sure that you completely understand the potential risks before agreeing to install any of the Third Party Software. You are solely responsible for adequate protection and backup of the data and equipment used in connection with any of the Third Party Software, and Sharman will not be liable for any damages that you may suffer in connection with using, modifying or distributing any of the Third Party Software.
9.4 Embedded Third Party Software
9.4.4 GAIN AdServer. Kazaa incorporates a software component called the GAIN AdServer, which is provided by GAIN Publishing. The GAIN AdServer software identifies your interests based on some of your computer usage and uses that information to deliver advertising messages to you. This software helps keep Kazaa free. The GAIN AdServer is provided pursuant to the GAIN Publishing End User License Agreement and Privacy Statement (located at http://www.gainpublishing.com/help/psdocs/kmd/privacy-help51.html), which you acknowledge that you have read and accept. If you would like to stop receiving advertisements through the GAIN AdServer, you will need to remove all GAIN supported software from your computer, including Kazaa, using the Add/Remove Programs Control Panel. For further information on GAIN Publishing and the GAIN AdServer, go to http://www.gainpublishing.com/.
9.4.5 InstaFinder. Kazaa comes with a software program called InstaFinder, which is provided by Vista Interactive, a division of Broadspring, Inc. InstaFinder is designed to redirect your URL typing errors to InstaFinder's web page. This software helps keep Kazaa free. The InstaFinder software is provided pursuant to the InstaFinder End User License Agreement (located below as Exhibit A), which you acknowledge that you have read and accept. For further information on Vista Interactive, go to http://www.vistainteractivemedia.com/.
9.4.6 For the purposes of this License, the Third Party Software described in this Section 9.4 is collectively referred to as "Embedded Third Party Software."
9.4.7 In exchange for downloading the Software at no cost, you expressly agree that you accept the Embedded Third Party Software and that so long as you have not entirely deleted Kazaa from your computer you will not take any action, including downloading other software which modifies, is intended to modify or permits others to modify registry or other settings on your computer to, disable, remove, block, prevent the functioning of, or otherwise interfere with any of the Embedded Third Party Software.
10. Applicable Law
10.1 This Licence as well as all disputes arising out of or in connection with this Licence shall be governed by the laws of the New South Wales, Australia, without regard to or application of choice of law rules or principles.
10.2 Any dispute arising out of or in connection with this Licence, or in future agreements resulting therefrom, shall be exclusively resolved before the competent court in New South Wales, Australia.
11. Points To Consider For International Use
11.1 Recognising the global nature of the Internet, you agree to comply with all local rules regarding on-line conduct and acceptable data. Specifically, you agree to comply with all applicable laws regarding copyright and the transmission of technical data exported from the country in which you reside.
12.1 YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND SHARMAN AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, AND EMPLOYEES, AT YOUR EXPENSE, AGAINST ANY AND ALL THIRD PARTY CLAIMS OR DEMANDS, ACTIONS, PROCEEDINGS AND SUITS AND ALL RELATED LIABILITIES, DAMAGES, SETTLEMENTS, PENALTIES, FINES COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES AND OTHER DISPUTE RESOLUTION EXPENSES) INCURRED BY SHARMAN, DUE TO OR ARISING OUT OF DATA YOU SUBMIT,POST TO, TRANSMIT OR COMMUNICATE THROUGH THE SOFTWARE,YOUR USE OR MISUSE OF THE SOFTWARE, YOUR CONNECTION TOOTHER USERS, YOUR VIOLATION OF THIS LICENSE,OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER.
13. Disclaimers of Warranties
13.1 THE SOFTWARE IS PROVIDED "AS IS", AND ON AN "AS AVAILABLE" BASIS AND THERE ARE NO CLAIMS, REPRESENTATIONS AND WARRANTIES MADE BY SHARMAN, EITHER EXPRESS, IMPLIED OR STATUTORY (TO THE EXTENT PERMITTED BY APPLICABLE LAW), WITH RESPECT TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF QUALITY, PERFORMANCE, TITLE, NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIESCREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE.
13.2 ANY DATA DOWNLOADED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
14. Limitation of Liability
14.1 YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SHARMAN BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY, EVEN IF SHARMAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLELOSSES, RESULTING FROM:
14.1.1 THE USE OR THE INABILITY TO USE THE SOFTWARE 14.1.2 THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE USE OF THE SOFTWARE;
14.1.3 UNAUTHORISED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
14.1.4 STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING THE SOFTWARE; OR
14.1.5 ANY OTHER MATTER RELATING TO THE USE OF THE SOFTWARE. IN NO EVENT SHALL SHARMAN'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF FIFTY AUSTRALIAN DOLLARS ($50).
14.2 WHERE THE TRADE PRACTICES ACT 1974 (CTH) OR SIMILAR STATE AND TERRITORY LEGISLATION IMPLIES INTO THIS LICENCE ANY CONDITION OR WARRANTY, AND THOSE LAWS AVOID OR PROHIBIT CONDITIONS IN A CONTRACT EXCLUDING OR MODIFYING THEM, THEN THE TERM, CONDITION OR WARRANTY SHALL BE DEEMED TO BE INCLUDED IN THIS LICENCE, PROVIDED THAT TO THE FULL EXTENT THAT SHARMAN IS ABLE TO THE LIABILITY OF SHARMAN FOR A BREACH OF ANY SUCH CONDITION OR WARRANTY, INCLUDING ANY ECONOMIC OR CONSEQUENTIAL LOSS, SHALL BE LIMITED AT THE OPTION OF SHARMAN TO ONE OR MORE OF THE FOLLOWING:
14.2.1 IF THE BREACH RELATED TO GOODS: (A) THE REPLACEMENTOF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; (B) THE REPAIR OF GOODS; (C) THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OBTAINING EQUIVALENT GOODS; (D) THE PAYMENT OF HAVING THE GOODS REPAIRED; OR
14.2.2 IF THE BREACH RELATES TO SERVICES: (A) THE SUPPLY OF THE SERVICE AGAIN; OR (B) THE PAYMENT OF THE COST OF HAVING THE SERVICE SUPPLIED AGAIN.
15.1 It is your responsibility to comply with the terms of this Licence and to obey the laws of your jurisdiction. Your rights under this Licence will terminate immediately and without prior notice if: you violate any term of this License, including violating any applicable laws or rights of any third party including the intellectual property rights of any such third party. You may be subject to legal action if you continue to use Kazaa in violation of this Licence. 16. Trademarks and Trade Dress
16.1 The Kazaa name, the Kazaa logo, and other Kazaa related properties are trademarks of Sharman. All other trademarks appearing on Kazaa are trademarks of their respective owners. 16.2 Kazaa "green" (Hex #98CC00) is a trade dress of Sharman Networks.
17.1 This Licence constitutes the entire understanding of you and Sharman with respect to the Software and the subject matter hereof. There are no understandings, agreements, conditions or representations, oral or written, express or implied, with reference to the subject matter hereof that are not merged herein, expressly referenced herein, or superseded hereby.
17.2 The failure or delay of Sharman to exercise or enforce any rights or provision of the Licence does not constitute a waiver of such right or provision.
17.3 All provisions which must survive in order to give effect to their meaning, shall survive any expiration or termination of this Licence, including without limitation all of your representations, warranties and indemnification obligations.
17.4 Should any part of this Licence be held invalid by any court or tribunal, such invalidity shall not affect the validity of any remaining part, which will remain in full force and effect as if this License had been executed without that part having been held to be invalid.
PLEASE READ THE FOLLOWING SOFTWARE LICENSE AGREEMENT (THIS "AGREEMENT") CAREFULLY. THE INSTAFINDER SOFTWARE IS A PRODUCT OWNED BY VISTA INTERACTIVE, A DIVISION OF BROADSPRING, INC. ("VISTA") AND/OR ITS LICENSORS. BY DOWNLOADING, INSTALLING AND USING THE INSTAFINDER SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. TO TERMINATE THIS LICENSE AGREEMENT, YOU MUST CEASE ALL USE OF THE KAZAA SOFTWARE AND UNINSTALL THE KAZAA SOFTWARE FROM YOUR COMPUTER BY USING THE ADD/REMOVE PROGRAMS MENU IN THE MICROSOFT WINDOWS CONTROL PANEL.
YOU ARE GRANTED THE FOLLOWING LIMITED LICENSE:
A. Vista grants you a non-exclusive, limited license, pursuant to the terms and conditions herein, to download, install and use the most current version of the Instafinder Software for personal, non-commercial purposes.
B. By installing the Instafinder Software, you agree to allow the Instafinder Software during the term of this Agreement to direct your Internet browser to www.instafinder.com (the "Site"), a search page operated by Vista, each time you mistype a URL. Additionally, you agree that the Instafinder Software may provide suggestions of other websites for you to visit based on your mistyped URL.
IT IS STRICTLY PROHIBITED TO:
A. Modify or allow others to modify the Instafinder Software in part or in its entirety.
B. Decompile, disassemble, reverse engineer, or allow others to decompile, disassemble or reverse engineer the Instafinder Software.
C. Rent, lend, assign, lease or transfer rights to the Instafinder Software.
SHOULD YOU FAIL TO COMPLY WITH ANY OF THE ABOVE, YOUR USER RIGHTS ARE AUTOMATICALLY
THIS TERMINATION WILL BE IN ADDITION TO ANY CRIMINAL, CIVIL OR OTHER REMEDIES WHICH VISTA MAY SEEK.
YOU AGREE THAT YOUR USE OF THE INSTAFINDER SOFTWARE OR THE SITE IS AT YOUR OWN RISK. THE INSTAFINDER SOFTWARE IS PROVIDED TO YOU 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. VISTA EXPLICITLY DISCLAIMS ALL LIABILITY WITH REGARD TO THE ACCURACY, CONTENT OR AVAILABILITY OF INFORMATION FOUND ON THE SITE AND/OR THE SITES THAT LINK TO OR FROM THE INSTAFINDER SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. VISTA MAKES NO WARRANTY THAT THE INSTAFINDER SOFTWARE OR THE SITE IS FREE OF DEFECTS OR ERRORS, OR THAT ANY RESULTS THAT MAY BE OBTAINED FROM ITS USE WILL BE RELIABLE.
Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
LIMITATION OF LIABILITY:
IN NO EVENT SHALL VISTA, ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS OR AFFILIATES, OR ANY OF THE CREATORS OF THE INSTAFINDER SOFTWARE BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE INSTAFINDER SOFTWARE OR THE SITE, INCLUDING ANY DAMAGES RESULTING THEREFROM, EVEN IF VISTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions do not allow the limitation of liability, so the foregoing limitation may not apply to you.
The entire risk as to the results and performance of the Instafinder Software or the Site is borne by the user.
The "Instafinder" trademark is the sole property of Vista and is protected by United States and international trademark and intellectual property laws. Use of the "Instafinder" trademark is strictly forbidden without the express written permission of Vista. You hereby acknowledge and agree the Vista and its licensors are the sole owners of all right title and interest in and to the Instafinder Software and the Site.
Vista reserves all rights not expressly granted herein. Vista may modify this Agreement at any time by posting the revised Agreement at www.instafinder.com. Your continued use of the Instafinder Software and/or the Site shall constitute your acceptance of such revised Agreement. You may not assign any rights granted to you hereunder. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law rules. Any legal proceeding arising out or relating to this Agreement will be subject to the exclusive jurisdiction of any state or federal court sitting in Los Angeles, California and you irrevocably consent to the personal jurisdiction and venue of such courts. If any provision or provisions of this Agreement 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. Vista may assign its rights and duties under this Agreement to any party at any time without notice to you. The terms set forth in this Agreement constitutes the final, complete and exclusive agreement with respect to the Instafinder Software.
ALTNET END USER AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY:
This End User License Agreement ("Agreement") constitutes a valid and binding agreement between Altnet, Inc. ("Altnet") and you ("you," "your" or "user") for the use of the Altnet Software, Network and Services, as those terms are defined below. You must enter into this agreement in order to install and use the Altnet Software.
BY CLICKING ON THE "I AGREE" BUTTON AND BY INSTALLING AND USING THE ALTNET SOFTWARE, YOU AGREE TO BE BOUND BY:
* THE TERMS OF THIS AGREEMENT WITH ALTNET; AND * THE TERMS OF THE AGREEMENT WITH FOCUS INTERACTIVE, INC., APPENDED TO THE END OF THIS AGREEMENT IN CONNECTION WITH THE INSTALLATION OF THE MY SEARCH TOOLBAR SOFTWARE THAT IS INCLUDED IN YOUR DOWNLOAD.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND THE MY SEARCH AGREEMENT, DO NOT CONTINUE WITH INSTALLATION.
The "Altnet Software" includes the PeerPoints Manager, the Altnet Download Manager, related components, Joltid Limiteds Joltid P2P Networking peer-to-peer software (the "Joltid P2P Networking Software"), any online or enclosed documentation, and any updates, fixes and upgrades provided to you.
The Altnet Software and the Services are not intended for use by or availability to persons under the age of 13 residing in the United States. IF YOU ARE UNDER 13 YEARS OF AGE AND RESIDE IN THE UNITED STATES, YOU MAY NOT DOWNLOAD, INSTALL OR USE ANY ALTNET SOFTWARE AND YOU MAY NOT ACCESS THE SERVICES.
1. License Grant
When you accept this license you are granted a limited, non- exclusive, personal, non-sublicensable, non-assignable license to download, install the Altnet Software onto, and use the Altnet Software on, a single computer owned or controlled by you solely for your personal use to install, interact with and utilize the Altnet Software.
Using the Altnet Software, you may access some or all of the services (the "Services") offered by Altnet and its licensors and authorized business partners (the "Altnet Providers"). The Services include, but are not limited to the management and distribution, through Altnets proprietary points management system (the "Points Program") of Altnet points ("Points") awarded to end users based on rules established by us from time to time ("Points Manager Rules") that are redeemable for various products and/or services through the Altnet Software, the Services and/or third party redemption partners and Promotional Program administrators of Altnet. You are only entitled to participate in the Points Program if you have downloaded and/or installed the PeerPoints Manager and complied with the Points Manager Rules which will be posted on the Altnet Website under a link entitled "Points Manager Rules." The Points Manager Rules may be amended as set forth in Section 16 of this Agreement. The Altnet Software may only be used in connection with the Services.
When we refer to the "Network" we mean all or part of the universe of computers connected to the Internet that are operating the Joltid P2P Networking Software as a component part of and in conjunction with the Altnet Software.
When we refer to "Promotional Programs" we mean sweepstakes, games of chance, skill contests and other promotions which are administered by Altnet or third party administrators on Altnets behalf and made available as part of the Points Program.
2. License Restrictions
(a) Notwithstanding anything to the contrary, you may not:
* remove any proprietary notices from the Services, Altnet Software or any copy thereof; cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling or disassembling of the Altnet Software; * sell, assign, rent, lease, act as a service bureau, or grant rights in the Altnet Software or Services, including, without limitation, through sublicense, to any other entity without the prior written consent of Altnet; * export or re-export the Software in violation of U.S. export laws; * use the Software or Services for any commercial purpose or the benefit of any third party or any manner not permitted by the license grant; * use the Altnet Software or Services to access any content files accessible through the Altnet Software without the permission of the publisher of the content files; * copy the Altnet Software (other than a single copy for your own backup purposes); * access, create or modify source code of the Software in any way; * use the Altnet Software or Services to, or in any way that would, violate any applicable law, regulation or ordinance; or * use the Altnet Software or Services to develop, generate, transmit or store information that: (A) infringes any third party's intellectual property or other proprietary right; (B) is defamatory or harmful; or (C) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Altnet Software or Services. (b) The Altnet Software and Services may be incorporated into, and may incorporate, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Altnet to enforce any of your rights. All modifications or enhancements to the Altnet Software remain the sole property of Altnet. You understand that Altnet, in its sole discretion, may modify or discontinue or suspend your right to access any of its Services or use any of the Altnet Software at any time, and may at any time suspend or terminate any license hereunder and disable any Altnet Software you may already have accessed or installed without prior notice or further obligation to you. Altnet reserves the right to add additional features or functions to the Altnet Software. When installed on your computer, the Altnet Software periodically communicates with Altnet Servers. You acknowledge and agree that Altnet has no obligation to make available to you any subsequent versions of its software applications.
3. Permission to Utilize
4. Proprietary Rights
The Altnet Software and Services contain proprietary and confidential information of Altnet, including copyrights, trade secrets and trademarks and are protected by United States and international copyright laws. The Altnet Software, including without limitation all intellectual property rights therein and thereto, are and shall remain the exclusive property of Altnet and its suppliers, and except for the limited license granted to you, Altnet reserves all right, title and interest in and to the Altnet Software. You agree not to take any action to jeopardize, limit or interfere with Altnet's ownership of and rights with respect to the Altnet Software and Services. You acknowledge that any unauthorized copying or unauthorized use of the Altnet Software or Services is a violation of this Agreement and copyright laws and is strictly prohibited.
5. Your Representations, Promises and Warranties
You represent, promise and warrant that: * you possess the legal right and ability to enter into this Agreement and to comply with its terms; * you will use the Altnet Software and Services for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies; * you will not attempt to decompile, reverse engineer or hack the Altnet Software, the Services or the Network or to defeat or overcome any encryption and/or digital rights management technology implemented by Altnet with respect to the Altnet Software, the Services and/or data transmitted, processed or stored by Altnet, the Altnet Software or the Services; * you will not attempt to tamper with, violate, breach, circumvent, disrupt, hack or in any manner compromise any security measures employed by Altnet or Altnets third party redemption partners and Promotional Programs administrators to protect the Points Program, including, but not limited to altering, duplicating, transferring, deleting, eliminating, manipulating or tampering with Points; * you will not take any steps to interfere with or in any manner compromise any of Altnet's security measures, the security measures of Altnets third party redemption partners, Promotional Programs administrators, other Altnet Providers, or any other individual's or entity's computer on the Network and/or otherwise sharing Services; and * you will only use the Altnet Software and Services on a computer on which such use is authorized by the computer's owner.
You agree that you will not use any automatic or manual device or process to interfere or attempt to interfere with the proper working of any of the Altnet Software, Points, Services or content, except to remove Altnet Software from a computer of which you are an owner or authorized user in a manner permitted by this Agreement. You may not violate or attempt to violate the security of Services provided by Altnet. Altnet reserves the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations.
If Altnet has reasonable grounds to suspect that your representations, warranties or promises are inaccurate or breached, Altnet may suspend or terminate your account, deny any or all use of the Altnet Software and/or Services, and pursue any appropriate legal remedies. You agree Altnet shall have the right to use the information you provide to it for the purposes described in this Agreement and in furtherance of your use of the Services.
You hereby acknowledge and agree that: * the Points are the sole property of Altnet and that you have no claim, right, title or interest in and to the Points awarded to you, other than your right to redeem with express permission of Altnet if any; * the Points are nontransferable and you shall not give, assign, transfer, trade, bargain, sell or otherwise distribute Points to any other end user or third party which is not an Altnet redemption partner; and * Altnet has the right to amend, change or modify the Points Manager Rules or Altnets policies regarding the Points at any time and at Altnets sole discretion, including, but not limited to, the cancellation, removal and/or termination of the Points, Promotional Programs and/or the Points Program in its entirety without any recourse to you whatsoever.
7. Further Agreements.
8. Joltid P2P Networking Software Component of Altnet Software
The Joltid P2P Networking Software included in the Altnet Software provides peer to peer communication and can be utilized and distributed separately from the Altnet Software by third parties that do not provide Points ("Other JP2PEnabled Parties").
When Other JP2PEnabled Parties download files via the Joltid P2P Networking Software the files will generally be saved to and shared from a cache folder (the "Joltid Cache Folder") maintained by the Joltid P2P Networking Software. You can control and manage the cache folder by going to "P2P Networking" in your Windows Control Panel area.
Where other JP2PEnabled Parties download files using the Joltid P2P Networking Software you will not earn Points when those files are shared from your computer. You can turn off sharing of non- Altnet files by selecting the "Only share Altnet Files" option.
ALL OTHER JP2PENABLED PARTIES ARE REQUIRED BY JOLTID TO NOTIFY YOU OR OBTAIN YOUR PERMISSION BEFORE THEIR FILES ARE DOWNLOADED AND/OR SHARED VIA JOLTID P2P NETWORKING SOFTWARE (THE "JOLTID P2P NETWORKING OBLIGATIONS").
You agree to indemnify, hold harmless and defend Altnet, Altnet Providers, Altnets third party redemption partners and Promotional Programs administrators, their affiliates, parent companies, subsidiaries, officers, directors, employees, advertising and promotions agencies, representatives or agents (collectively, the "Indemnified Parties"), at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other dispute resolution expenses) incurred by any Indemnified Party arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, or (b) use or misuse of the Altnet Software and/or Services.
10. Disclaimer of Warranties
(a) THE ALTNET SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY ALTNET, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE ALTNET SOFTWARE OR SERVICES, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. ALTNET FURTHER DOES NOT REPRESENT OR WARRANT THAT THE ALTNET SOFTWARE OR ANY SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE.
(b) YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE ALTNET SOFTWARE AND SERVICES REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(c) As some jurisdictions do not allow some of the exclusions set forth in this Section 10, some of these exclusions may not apply to you.
(d) THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
11. Limitation of Liability
(a) IN NO EVENT SHALL ALTNET, ANY OTHER ALTNET PROVIDER, ALTNETS THIRD PARTY REDEMPTION PARTNERS OR ALTNETS PROMOTIONAL PROGRAMS ADMINISTRATORS OR THEIR AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, ADVERTISING AND PROMOTIONS AGENCIES, REPRESENTATIVES OR AGENTS BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, LOSS OF POINTS IF APPLICABLE, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE ALTNET SOFTWARE OR THE SERVICES, EVEN IF ALTNET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE ALTNET SOFTWARE AND/OR SERVICES IS TO UNINSTALL AND CEASE USE OF SUCH ALTNET SOFTWARE AND SERVICES.
(c) ALTNET IS NOT A PARTY TO THE JOLTID P2P NETWORKING OBLIGATIONS AND YOU AGREE ALTNET IS NOT RESPONSIBLE IN ANY WAY FOR THIS USE OF YOUR RESOURCES.
(d) As some jurisdictions do not allow some of the exclusions set forth in this Section 11, some of these exclusions may not apply to you.
12. DMCA NOTICE
Altnet believes in the protection of the rights of copyrights owners and seeks to ensure that all works available on the Network are non-infringing. If you are a copyright holder and believe that your rights are being infringed by a work available on the Altnet Network, please visit www.altnet.com/dmca for instructions for filing a notification of claimed infringement pursuant to Title 17, United States Code, Section 512(c)(3).
13. Third Party Beneficiaries
You hereby agree that Joltid Limited, a British Virgin Islands Corporation as well as all other Indemnified Parties, are third party beneficiaries with respect to this Agreement and may enforce this Agreement as if a direct party hereto. Without limiting the foregoing, Sections 10 and 11 of this Agreement shall apply to Joltid Limited and all other Indemnified Parties as if Joltid Limited and each of the Indemnified Parties directly made such disclaimers and limitations of liability therein.
You may terminate this Agreement at any time provided you cease all use of the Altnet Software and Services AND destroy or remove from all hard drives, networks, and other storage media all copies of the Altnet Software. Altnet may terminate this Agreement at any time, with or without cause, by providing notice to you and/or preventing your access to the Altnet Software and/or Services. Sections 2, 3, 4, 5 and 7 through 16 shall survive such termination.
15. Electronic Signatures and Agreements
You acknowledge and agree that by clicking on the button labeled " SUBMIT", "DOWNLOAD", "I ACCEPT" or such similar links as may be designated by Altnet or Sharman Networks to download the Altnet Software to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE APPLICATION OR SERVICES OFFERED BY MY WAY. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
16. General Provisions
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE ALTNET SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO ALTNET THE RIGHTS SET FORTH HEREIN.
Effective: 12 Jan, 2004
MY SEARCH (TM) BAR END USER LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY
BY CLICKING ON THE "SUBMIT", "DOWNLOAD", " I ACCEPT" OR SUCH SIMILAR BUTTON OR LINK AS MAY BE DESIGNATED FOR PURPOSES OF INITIATING THE DOWNLOAD OF THE MY SEARCH TOOLBAR SOFTWARE PRODUCT (THE " MY SEARCH APPLICATION") AND/OR USING THE MY SEARCH APPLICATION YOU AGREE TO BE LEGALLY BOUND BY THESE LICENSE TERMS AND CONDITIONS.
PRODUCT OVERVIEW: THE MY SEARCH APPLICATION IS A CUSTOMIZABLE BROWSER TOOLBAR WHICH ENABLES EASY ACCESS TO SEARCH RESULTS FROM THE BEST SEARCH ENGINES ON THE INTERNET IN JUST ONE CLICK. THE MY SEARCH APPLICATION IS ALSO HIGHLY CUSTOMIZABLE AND ALLOWS YOU TO CREATE YOUR OWN BUTTONS AND LINKS.
THE MY SEARCH APPLICATION IS SPYWARE FREE AND NO REGISTRATION OR PERSONAL INFORMATION IS REQUIRED FOR USE.
1. License Grant
Subject to the terms and conditions of this Agreement, My Search (also referred to "we", "us" or "our") grants you a non-exclusive, revocable, limited license, to (a) download and install the most current version of the My Search Application (including all updates thereto) and (b) use the My Search Application(s) you download and install for your personal, non-commercial purposes.
2. License Conditions
You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), or in any way transfer any My Search Application or use any My Search Application for the benefit of any third party through any outsourcing or time-sharing arrangement or through the operation of any service bureau. You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the My Search Application, or attempt to do so for any reason. Further, you may not access, create or modify our source code in any way. You do not have the right to and may not create derivative works of the My Search Application. All modifications or enhancements to the My Search Applications remain the sole property of My Search. You understand that we, in our sole discretion, may modify or discontinue or suspend your right to access any of our services or use the My Search Application at any time, and we may at any time suspend or terminate any license hereunder and disable the My Search Applications.
You acknowledge and agree that the My Search Application is licensed, not sold to you by Focus Interactive, Inc. d/b/a My Search. You acknowledge that the My Search Application, including all code, content, protocols, software, and documentation provided to you by My Search in conjunction with the My Search Application or our services are My Search's property or the property of My Search's licensors, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. "Intellectual Property Rights" means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights. You may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice we have placed on any My Search Application. All rights not expressly granted hereunder are expressly reserved to My Search and My Search's licensors. "My Search", "My Search", and "My Search Hub" are trademarks of Focus Interactive, Inc. All Rights Reserved.
4. Content and Infringement
You understand that all content, including, without limitation all data, links, articles, search results, graphic or video messages and all information, text, software, music, sound, graphics or other materials ("Content") made available or accessible through the My Search Applications or our services, whether publicly available or privately transmitted, is the sole responsibility of the entity from whom it originated. You understand and agree that by using an My Search Application, you may be exposed to Content that may be offensive, indecent or objectionable in your community. You agree to accept all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content. Under no circumstances will My Search 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 My Search Application.
We are not responsible for any content such as audio, video, text or any other, files owned by users of the My Search Applications. All of the My Search Applications are exposed to various security issues, and should be regarded as unsecure. By accepting this Agreement, you indicate that you understand, acknowledge and agree that by using the My Search Applications, you may be subject to various risks, including the exposure of data you have downloaded or have offered to share, and that you accept all such risk as solely your risk and responsibility.
In addition, all content made available or accessed through the My Search Applications is the property of the applicable content owner and may be protected by applicable laws including without limitation those relating to Intellectual Property Rights. This Agreement gives you no rights to such content.
My Search respects and expects its users to respect the rights of copyright holders. On notice, My Search will act appropriately to remove content under our control that infringes the copyright rights of others. My Search reserves the right to disable the access to the My Search Applications and our services by anyone who uses them to repeatedly infringe the Intellectual Property Rights of others. If you believe that our services contain elements that infringe your copyrights in your work, please follow our Notice and Procedure for Making Claims of Copyright Infringement at http://www.mysearch.com/jsp/terms.jsp.
5. Installation, Operation and Removal.
The My Search Application does not collect any unique information about you (such as your name, email address, etc.). Further, the My Search Application does not: (i) collect or report back to My Search any information about sites you visit on the Internet; (ii) collect or "screen-scrape" any search queries or information that you provide to any web sites; (iii) serve pop-ups when you are on other websites; or (iv) collect or report back to My Search any data regarding your computer keystrokes or other data unrelated to the services the My Search Application provides. My Search may obtain unique information about you through use of the My Search Application or website only if you specifically and knowingly provide such information in connection with personalizing the My Search Hub (an Internet portal which may be linked to from the My Search Application) or if you contact My Search directly with a question or comment.
The My Search Application, in the course of processing a given search query, sends a request to our servers. This request includes the keyword query, time of day, browser type, default language setting, IP address, an anonymous unique ID, and a code which identifies the distribution source of the My Search Application used by you to conduct your search. If the search query is being generated as the result of a misspelled URL or search term entered in to the browser address bar, we also receive the misspelled URL address or search term. We use this information in order to properly process your search request. For example, this data provides us with: information on which language you prefer to use; aggregated click information for the purpose of ensuring that our search partners are appropriately compensating us; information that allows us to make accurate payments to our distributors; aggregated usage and retention information; and aggregated search query information for the purpose of further monetizing commercially oriented search keywords.
Importantly, all information collected from a search query is recorded on a non-personally identifiable basis and is kept strictly anonymous. In addition, all information about search activity is evaluated only on an aggregated basis (except in response to a customer service inquiry or legal process), and we do not disclose any non-aggregated information to third parties, except as required by a valid legal process such as a search warrant, subpoena, statute, or court order, or to protect someone's safety.
The My Search Application also sends a configuration request when you start your browser. This request is approximately 5k in size and includes only anonymous data such as IP address, browser type, and information about the specific release date and distribution source of your My Search Application, as outlined above. Again, all of this information is kept strictly anonymous, is non-personally identifiable, and is used only for purposes of delivering search services and content in accordance with your preferences and providing us with data on an aggregated basis relating to retention, usage, and monetization.
If you wish to withdraw your consent to the communication and data usage as described herein, you should uninstall any and all My Search Applications from your computer. You may uninstall or remove the My Search Application at any time by using the Windows add/remove programs function to remove the "My Search Bar" and "Search Assistant - My Search" programs, or following the instructions listed on our website at http://help.mysearch.com/searchbar.html#q4.
6. Your Obligations
You represent and warrant that you are either the owner or an authorized user of the computer where the My Search Application is installed. The services described herein are subject to, and you agree that you shall at all times comply with, all local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to use of the My Search services and My Search Application.
7. Access and Interference
You agree that you will not use any robot, spider, other automatic or manual device or process to interfere or attempt to interfere with the proper working of any of our My Search Applications, services or content, except to remove our My Search Applications from a computer of which you are an owner or authorized user. We reserve the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You agree that it is your responsibility to install anti-virus software and related protections against viruses, Trojan horses, worms, time bombs, cancelbots or other techniques that may have the effect of damaging, destroying, disrupting or otherwise impairing a computer's functionality or operation.
8. Electronic Signatures and Agreements
You acknowledge and agree that by clicking on the button labeled "SUBMIT", "DOWNLOAD", "I ACCEPT" or such similar links as may be designated by My Search to download the software to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE MY SEARCH APPLICATION OR SERVICES OFFERED BY MY SEARCH. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
9. Disclaimer of Warranty
YOU ACCESS AND USE OF THE MY SEARCH APPLICATIONS AND SERVICES AND ANY CONTENT AVAILABLE THROUGH OUR SERVICES OR ON OUR WEBSITES AT YOUR SOLE RISK.
WE PROVIDE THE MY SEARCH APPLICATIONS AND THE CONTENT ON AN "AS IS," AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION OR NON- INFRINGEMENT.
WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES PROVIDED BY THIRD PARTIES ACCESSIBLE ON OR THROUGH OUR MY SEARCH APPLICATIONS OR OUR SERVICES.
NEITHER WE NOR OUR DIRECTORS, OFFICERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, CONTRACTORS, THIRD PARTY VENDORS, FACILITIES, INFORMATION PROVIDERS, LICENSORS, NOR ANY EXCHANGES, CLEARING ORGANIZATIONS OR OTHER SUPPLIERS PROVIDING DATA, INFORMATION, OR SERVICES (EACH A "PROVIDER") MAKE ANY REPRESENTATION OR WARRANTY: (A) AS TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF THE MY SEARCH APPLICATIONS OR MY SEARCH'S SERVICES OR ANY INFORMATION, SERVICE OR TRANSACTION PROVIDED THEREBY, OR (B) THAT THE MY SEARCH APPLICATIONS OR MY SEARCH'S SERVICES WILL BE AVAILABLE OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, (C) THAT ERRORS OR DEFECTS RELATED TO THE MY SEARCH APPLICATIONS OR THE SERVICES WILL BE CORRECTED OR (D) THAT WE CAN IDENTIFY AND IDENTITY THEFT. WE ALSO DO NOT WARRANT THAT THE MY SEARCH APPLICATIONS OR THE SERVICES OR THE INFORMATION AVAILABLE THROUGH THE SERVICES, IS APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
The above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied warranties.
You may terminate this Agreement at any time by uninstalling and destroying all copies of the My Search Applications in your possession or control. We may terminate this Agreement, disable My Search Applications or cease providing any service at any time in our sole discretion.
11. Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL MY SEARCH, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES OR THEIR EMPLOYEES, DISTRIBUTORS, SUPPLIERS, MERCHANT PARTNERS, ADVERTISERS, DIRECTORS OR AGENTS (EACH A "PROTECTED PARTY, COLLECTIVELY "PROTECTED PARTIES") BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR OTHER RELIEF ARISING OUT OF, OR RELATED TO, THIS AGREEMENT OR TO YOUR USE OR INABILITY TO USE ANY OR ALL OF THE MY SEARCH APPLICATIONS OR MY SEARCH SERVICES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, GOODWILL, OR OTHER INTANGIBLE LOSSES (EVEN IF MY SEARCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
SOLELY TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, FOR ANY REASON, HELD TO BE INAPPLICABLE OR UNENFORCEABLE IN WHOLE OR IN PART, THEN MY SEARCH'S AGGREGATE LIABILITY, FOR ANY REASON AND FOR ANY CAUSE OF ACTION AND ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF DAMAGES ACTUALLY INCURRED OR THE AVERAGE REVENUE RECEIVED BY MY SEARCH PER USER OF THE MY SEARCH APPLICATION PER MONTH AS CALCULATED BY MY SEARCH BASED ON THE USE OF THE MY SEARCH APPLICATIONS (AND NOT OTHER PRODUCTS OR SERVICES OFFERED BY MY SEARCH) MULTIPLIED BY THE NUMBER OF COMPLETE MONTHS YOU HAVE BEEN A MY SEARCH APPLICATION USER. THE 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 BASED UPON: (I) ANY METHOD OR PROCESS IN WHICH THE MY SEARCH APPLICATION MAY BE USED BY YOU; (II) ANY RESULTS OF USING THE MY SEARCH APPLICATION; (III) ANY USE OF OTHER THAN A CURRENT UNALTERED RELEASE OF ONE OF THE MY SEARCH APPLICATIONS; OR (IV) THE COMBINATION, OPERATION OR USE OF ANY OF THE MY SEARCH APPLICATION(S) WITH THIRD PARTY PROGRAMS OR DATA.
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, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
12. Export Controls
The My Search Application 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) Afghanistan, Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, 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 My Search Application, you agree 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.
13. Notice to Government End Users
Any My Search Application, software and documentation hereunder downloaded or otherwise installed for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights as "Commercial Items," as that term is defined at 48 C.F.R. section 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. section 12.212 or 48 C.F.R. section 227.7202, as applicable. Pursuant to Federal Acquisition Regulation 12.212 (48 C.F.R. section 12.212), the U.S. Government shall have only those rights specified in the license contained herein. The U.S. Government shall not be entitled to (i) technical information that is not customarily provided to the public or to (ii) use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as specified herein. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as 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.
14. Applicable Law
Any claim or controversy arising out of or related to this Agreement, or the products or services we provide or distribute shall be settled by individual binding arbitration in accordance with the rules of the American Arbitration Association then effective. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. Further, in any such dispute, under no circumstances will you be permitted to obtain awards for, and you hereby waive all rights to claim punitive, incidental or consequential damages, and you further waive all rights to have damages multiplied or increased. This shall not preclude My Search from seeking any injunctive relief for protection of our Intellectual Property Rights. The arbitration shall take place in Irvington, New York or such other location as the parties may mutually agree. The arbitrator(s) shall issue a reasoned award, and any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The arbitrator(s) will each be a natural person who has never been employed (either as an employee or as an independent consultant) by either of the parties, or any parent, subsidiary or affiliate thereof, and will be generally familiar with the business of the parties. The arbitrator(s) may upon request exclude from use in the arbitration proceeding any evidence not made available to the other party pursuant to a proper discovery request. The cost of the arbitration will be borne equally by the parties. The parties, their representatives, other participants, the arbitrator(s) and the administrator(s) of the arbitration will hold in confidence the existence, content and outcome of the arbitration. The parties understand that: (i) arbitration is final and binding on the parties; (ii) the parties are waiving their right to seek remedies in court, including the right to a jury trial; (iii) pre- arbitration discovery is generally more limited than and different from court procedures; and (iv) any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
16. Successor Agreements
The terms of this Agreement may change from time to time. You should check back at the website regularly to determine if any material changes have been made. We will prominently post material changes on the My Search website at least 14 days prior to the effective date of the change and will also attempt to provide you with an on-line notice informing you when such material changes have been made to this Agreement, which notice shall contain an active link that you can use to view a web page containing or linking to the revised Agreement.
You agree that your continued use of any My Search Application or our services after the effective date of any change to this Agreement will constitute your affirmative consent to this revised Agreement. If you do not accept such revisions, you must affirmatively indicate to us by e-mail to firstname.lastname@example.org that you do not accept the successor Agreement and remove all of our My Search Applications from your computer and cease all access to and use of our services hereunder. Failure to remove our My Search Applications from your computer will be deemed an acceptance of the terms of the most current Agreement.
17. Order of Precedence
This Agreement and any accepted successor Agreement governs your use of our My Search Applications and our services as described herein. To the extent that any provision of this Agreement, or any supplemental agreement offered as any part of any registration for additional My Search Applications or services, conflicts with any provision of other agreements between you and My Search or any of its related or affiliated entities, the terms of the then-current Agreement, shall, as to the specific subject matter of this Agreement, take precedence over the conflicting term(s) of that other agreement
The My Search Software and the Services are not intended for use by or availability to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MAY NOT DOWNLOAD, INSTALL OR USE ANY MY SEARCH SOFTWARE AND YOU MAY NOT ACCESS MY SEARCH SERVICES.
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 email@example.com .For specific questions regarding the specific terms of these Terms and Conditions, contact us at firstname.lastname@example.org.
--- 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.
Microsoft Windows is either a registered trademark or a trademark of Microsoft Corporation in the United States and/or other countries.