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June 8th, 2003, 10:49 AM #1
Posted June 8th 2003, for referance only
PLEASE READ THE FOLLOWING END USER LICENSE AGREEMENT CAREFULLY BEFORE CLICKING THE DOWNLOAD BUTTON. IT CONTAINS IMPORTANT INFORMATION THAT YOU SHOULD KNOW BEFORE USING OUR PRODUCTS AND SERVICES.
End User License Agreement
This END USER LICENSE AGREEMENT (the "Agreement") contains rights and restrictions associated with use of the accompanying software, documentation and services (as may be upgraded from time to time, the "Software and/or Services"). Please read this Agreement carefully before clicking the "I Accept" button at the end of this Agreement. By installing the Software you agree to the terms and conditions of this License.
1.Scope of Licensed Rights.
"Etraffic, Inc., dba TopMoxie ("TopMoxie") grants you a non-exclusive license to install and use the current version of the Software and access the accompanying Services, free of charge, if your use of the Software is exclusively for your personal, non-commercial purposes.
When installed on your computer, the Software periodically communicates with our servers in order to update and monitor the Services. We may update the Software on your computer when a new version is released or when new features are added. These updates occur automatically. By clicking the "I Accept" button at the end of this Agreement you agree that the terms of this Agreement will apply to any such automatic upgrades you may receive. Notwithstanding the above, we have no obligation to make available to you any subsequent versions of the Software, and can at any time revoke this license and terminate the Services.
You may not modify, reverse engineer, decompile or otherwise disassemble the Software in any way. You may not create derivatives of the Software, and you agree not to attempt, or allow others to attempt to reverse engineer and/or modify the Software source or object code. Any and all modifications or enhancements to the Software shall remain the sole and exclusive property of TopMoxie. You further agree not to access or attempt to access the Software or Service by any means other than the interface provided by TopMoxie. You understand that TopMoxie, in its sole discretion, may modify, discontinue or suspend your right to access the Software/Service at any time.
The Software may not be leased, assigned, or sublicensed, in whole or in part. TopMoxie reserves all rights in the Software/Service not expressly granted to you in this Agreement. Persons under the age of 13 may not license the Software.
You understand that the Software is a voluntary software program, and you may uninstall it at any time by using the windows add/remove programs function. However, by uninstalling the Software, you will be unable to access the Service.
You agree that the Software is licensed and not sold to you, and that the Software and Services are owned by TopMoxie, including all intellectual and property rights in the Software and Services. TopMoxie maintains all right, title and interest in and to the Software and Services at all times, and regardless of the form of media in or on which the original or other copies may subsequently exist. In addition, all content accessed through the Software is the property of the applicable content owner and may be protected by applicable intellectual property laws. This Agreement gives you no right to such content.
4.Trademarks and Logos.
TopMoxie is a trademark of Etraffic, Inc. All other trademarks and service marks are the property of their respective owners.
You agree not to use the Service to conduct any business or activity or solicit the performance of any activity, which is prohibited by law, or any contractual provision by which you are bound. You agree to comply with all applicable laws, rules and regulations in connection with the Service. 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 our Web site.
6.Disclaimer of Warranty.
USE OF THE SOFTWARE, SERVICES, OUR WEB SITE, AND ANY CONTENT AVAILABLE THEREFOR IS AT YOUR OWN RISK. TOPMOXIE PROVIDE(S) THE WEB SITE, SOFTWARE, SERVICES, AND CONTENT 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. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. TOPMOXIE MAKES NO WARRANTY THAT (i) THE SERVICES, CONTENT AND SOFTWARE ARE ACCURATE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, CONTENT OR SOFTWARE WILL BE RELIABLE; (iii) THE SERVICES WILL IDENTIFY ANY IDENTITY THEFT, (iv) THE QUALITY OF ANY PRODUCTS OBTAINED OR PURCHASED THROUGH THE USE OF THE SERVICES, CONTENT OR SOFTWARE WILL MEET YOUR EXPECTATIONS; OR (v) ANY ERRORS IN THE SOFTWARE, SERVICES OR CONTENT WILL BE CORRECTED. The above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied warranties.
Our Web site or Services may contain links to Web sites operated by other parties. The linked Web sites are not under the control of TopMoxie, and TopMoxie is not responsible for the content available on any other Internet sites linked to our Web site. Unless otherwise stated, such links do not imply TopMoxie's endorsement of material on any other Web site, and TopMoxie disclaims all liability with regard to your access to such linked Web sites. Your access to any other Web sites linked to this Web site is at your own risk.
You may terminate this Agreement at any time by uninstalling and destroying all copies of the Software in your possession or control. The License will terminate automatically if you fail to comply with the limitations described herein. On termination, you must destroy all copies of the Software.
9.Limitation of Liability.
IN NO EVENT WILL TOPMOXIE, ITS EMPLOYEES, DISTRIBUTORS, SUPPLIERS, ADVERTISERS, DIRECTORS OR AGENTS (COLLECTIVELY "PROTECTED PARTIES") BE LIABLE FOR ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE OR SERVICES INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF SUCH USE OR INABILITY TO USE THE SOFTWARE, SERVICE OR WEB SITE, EVEN IF A PROTECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN NO EVENT WILL TOPMOXIE'S MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED $1,000.00.
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, TopMoxie's liability shall be limited to the extent permitted by law.
The 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, 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 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.
TopMoxie operates its Web site and provides the Software and Services from our offices in California, USA. The laws of the State of California will govern this Agreement, without reference to conflicts of law principles. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement.
Any claim or controversy arising our of or related to this Agreement, or the products or services we provide 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 TopMoxie from seeking any injunctive relief for protection of TopMoxie's intellectual property rights.
13.Limitation of Support.
If you are using the Software free of charge under the terms of this agreement, you are not entitled to support or telephone assistance from TopMoxie.
The terms of this Agreement may change in the future. If this occurs, assuming that TopMoxie has access to a current and effective email address for you, TopMoxie will provide to you notification of the Agreement change information via email. If you have opted out of receiving optional email communications you will still get this notification via a Service Alert email. TopMoxie will always post such changes on our Web site that can be accessed at http://www.topmoxie.com.
You agree that after such notice, you consent to the successor Agreement, unless you affirmatively indicate to TopMoxie by email that you do not accept the successor Agreement. If you do not accept the successor Agreement, you should remove the Software from your computer. Failure to remove the Software from your computer indicates acceptance of the terms of the Agreement and any successor Agreements. Except as provided in this Section, this Agreement may not be revised except in writing signed by both parties.
This Agreement, 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 TopMoxie 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. TopMoxie 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 TopMoxie. You may not assign this Agreement without our consent.
If you have any questions or comments about the End User License Agreement please contact us at email@example.com.
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The secret of success is constancy of purpose. ~ Disraeli</font></p>