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1.
License. If you accept this License, WebMessenger, Inc. ("WebMessenger")
hereby licenses to you one electronic copy of the computer program(s)
you are about to install and related documentation (the "Software" or
“SOFTWARE”). BY DOWNLOADING, INSTALLING, OR USE OF THE SOFTWARE YOU ARE
ACCEPTING THE TERMS OF THIS LICENSING AGREEMENT. WebMessenger retains
all right, title and interest in and to the Software. That Software and
all parts thereof are the subject matter of various proprietary rights,
including without limitation copyrights, trade secrets, patents and
other similar intellectual and industrial property rights ("Proprietary
Rights").
This
License permits you to use the Software on a single mobile computing
device or personal computer or workstation and to make one copy of the
Software in machine-readable form for backup purposes only. Within any
such copy, you must reproduce the copyright notices and any other
proprietary legends that were on the original downloaded copy of the
Software. No license, right or interest in any trademark, trade name or
service mark of WebMessenger or any third party is granted under this
License. You acknowledge that neither this License, nor your subsequent
use of the Software, shall in any way be construed to provide an express
or implied license to use, modify or improve any of the content of the
Software, including without limitation any works, inventions,
discoveries, technology or other items which are the subject matter of
WebMessenger's Proprietary Rights, or otherwise to use or exploit the
Software or the Proprietary Rights in any matter not expressly permitted
herein.
2.
WebMessenger Mobile Instant Messaging Server. WebMessenger uses an
intermediate proxy server to connect to the various instant messaging
networks. Upon downloading and installing the Software, you understand
and consent to the knowledge that the WebMessenger Mobile Instant
Messaging Server will be acting on your behalf in interacting with third
party IM networks.
You
understand that there is no guarantee implied or otherwise that this
service provided by the WebMessenger Instant Messaging Server will
continue to be provided for any length of time with or without payment
of money for the service.
WebMessenger provides the Software for your use in conjunction with
WebMessenger Mobile IM Services, which includes but is not limited to:
(i) a WebMessenger Mobile IM account that, when activated, provides you
access to an interoperability gateway for public IM networks AOL®,
Yahoo!®, MSN®, Google, and ICQ®, (ii) WebMessenger Mobile IM Software
that provides access to your personal accounts registered with any of
the above supported public IM networks, from mobile smartphones and PDAs
supported by the WebMessenger Mobile IM Software and WebMessenger
Windows Desktop IM software, and (iii) the ability to send and receive a
limited number of instant messages through your WebMessenger Mobile IM
account. Notwithstanding the foregoing, your use of the WebMessenger
Mobile IM Services, provided by WebMessenger related to the Software
shall be pursuant to a separate WebMessenger Customer Agreement
governing your use of such services.
3.
Restrictions. You may not attempt to create or derive any of the source
code or other technology or data within the Software by disassembly,
reverse engineering or any other method, or otherwise reduce the
Software to a human-perceivable form. You may not modify or translate
any part of the Software. You may not use, disclose, distribute, make or
have made any copies of the Software, in whole or in part, nor rent,
lease or lend the Software without the prior written authorization of
WebMessenger, provided, however, that you may maintain a backup copy of
the Software during the term of this License. You agree to provide
notice to WebMessenger immediately after learning of or having reason to
suspect a breach of any of the provisions set forth in this License.
4.
Indemnification. You agree to indemnify and hold harmless WebMessenger
against any cost, expenses, liabilities or damages arising from or
relating to a claim that you used the Software to perform any illegal
activity, including, but not limited to, the infringement of any
copyright or other intellectual property right.
5.
Termination. This License is effective until terminated. You may
terminate this License at any time by destroying the Software, and all
copies thereof. This License will terminate immediately without notice
from WebMessenger if you fail to comply with any provision of this
License. Upon termination, you must destroy the Software and all copies
thereof.
6.
Disclaimer of Warranty. REGARDLESS OF WHETHER OR NOT YOU CHOOSE TO
PURCHASE YOUR COPY OF THE SOFTWARE, THE SOFTWARE AND RELATED
DOCUMENTATION ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, AND
WEBMESSENGER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF DESIGN,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT,
ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE
PRACTICE, OR ANY WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD PARTY'S
PATENT(S), TRADE SECRET(S), COPYRIGHT(S) OR OTHER INTELLECTUAL PROPERTY
RIGHTS. WEBMESSENGER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN
THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE
SOFTWARE WILL BE CORRECTED.
Furthermore, WebMessenger does not warrant or make any representations
regarding the use or the results of the use of the software or related
documentation in terms of their correctness, accuracy, reliability, or
otherwise. No oral or written information or advice given by
WebMessenger or WebMessenger's authorized representative shall create
any warranty or in any way increase the scope of this warranty. Should
the Software prove defective, you (and not WebMessenger or
WebMessenger's authorized representative) assume the entire cost of all
necessary servicing, repair or correction. Some states do not allow
exclusion of implied warranties, so the above exclusion may not apply to
you. This warranty gives you specific legal rights, and you may also
have other rights which vary from state to state.
7.
Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE,
SHALL WEBMESSENGER BE LIABLE FOR ANY LOST REVENUE OR PROFITS OR ANY
INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM
THE USE OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN
IF WEBMESSENGER OR WEBMESSENGER'S AUTHORIZED REPRESENTATIVE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO
EVENT SHALL WEBMESSENGER'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES,
LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU FOR THE
SOFTWARE.
8. Export
Law Assurances. You may not use or otherwise export or reexport the
Software except as authorized by United States law and the laws of the
jurisdiction in which the Software was obtained. In particular, but
without limitation, the Software may not be exported or reexported (i)
into (or to a national or resident of) any U.S. embargoed country or
(ii) to anyone on the U.S. Treasury Department's list of Specially
Designated Nationals or the U.S. Department of Commerce's Table of
Denial Orders. By using the Software, you represent and warrant that you
are not located in, under control of, or a national or resident of any
such country or on any such list.
9. U.S.
Government Restricted Rights. If you are a unit or agency of the United
States Government or are acquiring the Software for any such unit or
agency, the following applies: (a) If the unit or agency is the
Department of Defense ("DOD"), the Software and any related
documentation are classified as "commercial computer Software" and
"commercial computer Software documentation", respectively, and,
pursuant to DFAR Section 227.7202, the Government is acquiring the
Software and any related documentation in accordance with the terms of
this License. (b) If the unit or agency is other than DOD, the Software
and any related documentation are classified as "commercial computer
Software" and "commercial computer Software documentation",
respectively, and pursuant to FAR Section 12.212, the Government is
acquiring the Software and any related documentation in accordance with
the terms of this License.
10.
Controlling Law. This License is made under, shall be governed by and
construed in accordance with the laws of the State of California,
U.S.A., excluding its choice of law provisions. The parties agree that
the United Nations Convention on Contracts for the International Sale of
Goods will not apply to this License. All disputes arising out of this
license shall be subject to the exclusive jurisdiction of federal and
state courts located in Los Angeles County, California. You hereby
consent to the personal and exclusive jurisdiction and venue of such
courts.
11.
Miscellaneous. This License constitutes the entire agreement between the
parties with respect to its subject matter, and supersedes any and all
written or oral agreements previously existing between the parties with
respect to such subject matter. Any modifications of this License must
be in writing. This License will bind and inure to the benefit of each
party's successors and assigns, provided that you may not assign this
License, in whole or in part, without the prior written consent of
WebMessenger. If any provision of this License is found illegal or
unenforceable, it will be enforced to the maximum extent permissible,
and the legality and enforceability of the other provisions of this
License will not be affected. No failure of either party to exercise or
enforce any of its rights under this License will act as a waiver of
such rights. No purchase order, invoice or similar document will by its
terms amend or supplement the terms and conditions of this License, even
if accepted or signed by the receiving party.
YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE
TO BE BOUND BY ITS TERMS AND CONDITIONS.
THE
SOFTWARE AND THE ACCOMPANYING DOCUMENTATION ARE PROTECTED BY UNITED
STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION
OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
© 2008
WebMessenger, Inc. All rights reserved. |
