End user agreement for PlanetDNS Client
End User Software License Agreement
NewAce Corporation ("NewAce") provides its customers with access to certain computer software and supporting documentation (collectively, the "NewAce Software") which can be downloaded from the NewAce websites located at www.planetdns.net (the "Website"). The NewAce Software allows you to access and use certain services provided by NewAce which provide you with a visible presence on the Internet from which you can make content available (the "Service"). This End User Software License Agreement (this "Agreement") is a binding agreement with NewAce. The right to download and use the NewAce Software and receive the Service is granted only upon the condition that you agree to the terms and conditions set out below.
BY SELECTING THE "I ACCEPT" BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, YOU SHOULD NOT SELECT THE "I ACCEPT" BUTTON AND YOU WILL NOT BE ALLOWED TO INSTALL THE NEWACE SOFTWARE.
1. Grant of Rights. In consideration for either:
(a) the payment by you to NewAce of the license fee associated with the NewAce Software; or
(b) evaluating the NewAce Software on a thirty (30) day trial basis
NewAce hereby grants you, subject to the terms and conditions contained herein and for the term set forth in Section 5 below, a non-exclusive right to download and use the NewAce Software, in object code only, and use the Service in accordance with the purposes for which they were designed, namely, to provide you with a visible presence on the Internet from which you can make content available. This may be accomplished by the use of a web server, FTP server, or other content delivery mechanism. This license is personal to you and may not be transferred, assigned or sub-licensed.
2. Trial Software. You may order trial NewAce Software, which you may use for trial purposes only. You will have a single thirty (30) day period from the delivery date to evaluate the NewAce Software. If you decide to use the NewAce Software after the thirty (30) day trial period, you must obtain a license for the NewAce Software from NewAce. The NewAce Software licensed for trial purposes is provided "as is" and NewAce does not provide any warranties for the trail NewAce Software.
3. Amendments. NewAce may at any time, in its sole discretion and without prior notice to or authorization by you, add to, delete or amend the terms and conditions of this Agreement. The amended agreement will be posted on the Website. Your continued use of the NewAce Software following the posting of the amended agreement means that you agree to and accept the terms of the amended agreement in their entirety. If you do not agree to comply with all of the terms of the amended agreement, your sole and exclusive remedy is to discontinue your use of the NewAce Software and the Service. All references in this Agreement shall be understood to be references to this Agreement as it is amended from time to time.
4. License Fee. The license fees associated with this Agreement are posted on the NewAce web site at http://www.planetdns.net/purchase/ (the "License Fees"). In addition to the license fees described above, you agree to pay NewAce any monthly service fees, which may, from time to time, be required by NewAce together with all applicable taxes (collectively, "Service Fees").
5. Term and Termination. The term of this Agreement is:
(a) thirty (30) days in the case of users who are using the NewAce Software on a trial basis;
(b) one (1) year in the case of users who have paid a license fee for one (1) year;
(c) two (2) years in the case of users who have paid a license fee for two (2) years; and
(d) five (5) years in the case of users who select the one-time fee package.
You may renew this Agreement by paying an additional License Fee along with any Service Fees payable at the date of renewal as set out in Section 4 above.
NewAce may, on reasonable notice to you, terminate this Agreement at any time. Termination of this Agreement by NewAce does not relieve you of your obligations to pay the license fee or entitle you to refund of any license fees paid.
You may terminate this Agreement at any time. Termination of this Agreement by you does not relieve you of your obligations to pay the license fee or entitle you to refund of any license fees paid.
Upon termination of this Agreement you must immediately erase all copies of the NewAce Software in your possession, power or control and cease use of the Service.
The following provisions survive termination of this Agreement: 13, 14, 19 and 20.
6. Reservation of Title. NewAce retains all ownership and intellectual property rights in and to the NewAce Software, including all copyrights therein. You may make and distribute copies of the NewAce Software provided that you do not:
(a) modify the NewAce Software;
(b) decompile, reverse engineer, or disassemble, modify or create derivative works based on the NewAce Software; or
(c) remove any copyright or other NewAce proprietary notices.
7. Computer Equipment Required. In order to use the NewAce Software, you will need the minimum computer equipment requirements as set out http://www.planetdns.net/requirements/. Future upgrades to the NewAce Software may require enhanced computer equipment.
8. Upgrades. You agree that NewAce may, from time to time, in its sole discretion, issue upgraded versions of the NewAce Software, and may automatically electronically upgrade the version of the NewAce Software that you are using on your computer. You consent to such automatic upgrades and agree that the terms and conditions of this Agreement will apply to all such upgraded versions of the NewAce Software.
9. Contact Address. For any inquiries or notices required in connection with this Agreement, you agree to contact NewAce via telephone at +1 519 336-4837 option 222, or by e-mail at email@example.com, or by written notice address to NewAce Corporation, P.O. Box #456 STN MAIN, Sarnia, ON, N7T 7J4, Canada.
10. Use of the NewAce Software and Service. You agree to comply with all policies regarding permitted and prohibited uses of the NewAce Software and the Service that may be posted by NewAce at http://www.planetdns.net/aup/ on the Website and as amended from time to time (collectively, the "Acceptable Use Policy"). Without limiting the generality of the foregoing, you agree that you will not use the NewAce Software or the Service to, directly or indirectly.
(a) invade another person's privacy; unlawfully use, possess, post, transmit or disseminate obscene, profane or pornographic material; post, transmit, distribute or disseminate content that is unlawful, threatening, abusive, libelous, slanderous, defamatory or otherwise offensive or objectionable; unlawfully promote or incite hatred; or post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any municipal, provincial, federal or international law, order or regulation;
(b) access any computer, software, data, or any confidential, copyright protected or patent protected material of any other person, without the knowledge and consent of such person, nor use any tools designed to facilitate such access, such as "packet sniffers";
(c) upload, post, publish, deface, modify, transmit, reproduce, or distribute in any way, information, software or other material that is protected by copyright, or other proprietary right, or related derivative works, without obtaining permission of the copyright owner or rightholder;
(d) alter, modify, reverse engineer or tamper with any computer systems (including software and hardware) owned, operated or used by NewAce to provide the Service;
(e) use the Service to attempt to penetrate, modify or manipulate the Service in order to invade the privacy of, obtain the identity of, or obtain any personal information about (including but not limited to the IP addresses of) any NewAce account holder or user, or to modify, erase or damage any information contained on the computer of any user connected to the Service;
(f) restrict, inhibit or otherwise interfere with the ability of any other person to use or enjoy the Internet, or other feature of the Service, or create an unusually large burden on the NewAce system, including, without limitation: posting or transmitting any information or software that contains a virus, lock, key, bomb, worm, trojan horse or other harmful or debilitating feature; distributing mass or unsolicited email; or otherwise generating levels of traffic sufficient to impede others' ability to send or retrieve information;
(g) disrupt any backbone network nodes or network service used by NewAce, or otherwise restrict, inhibit, disrupt, or impede NewAce's ability to monitor or deliver the Service;
(h) interfere with computer networking or telecommunications service to or from any Internet user, host or network, including but not limited to denial of service attacks, overloading a service, improper seizure or abuse of operator privileges ("hacking") or attempting to "crash" a host; or
(i) use the NewAce Software or Service for anything other than your own personal or legitimate business purposes.
In addition to our termination rights set out elsewhere in this Agreement, we may terminate this Agreement if you engage in one or more of the above prohibited activities. Additionally, NewAce reserves the right to charge you for any direct or indirect costs incurred by NewAce in connection with your breach of any provision of this Agreement, including costs incurred to enforce your compliance with it.
11. Content Restrictions. Although NewAce has no obligation to monitor content posted by you or your use of the Service, you agree that NewAce can monitor and investigate content and your use of the Service from time to time and may disclose any information about you as necessary to:
(a) satisfy any law, regulation or other governmental request or to assist in the pursuit of any legal action against you;
(b) operate the Service properly;
(c) ensure or enforce compliance with this Agreement; or
(d) protect NewAce and its customers.
NewAce reserves the right to either refuse to post or to remove any information or materials, in whole or in part, that it decides are unacceptable, undesirable, or in violation of this Agreement.
12. Export Laws. You agree to comply with all applicable international and national laws that may apply to the NewAce Software, including Canadian and U.S. export regulations, as well as end user, end-use, and destination restrictions issued by Canadian, U.S. and other governments.
13. Governing Law and Forum. This Agreement is exclusively governed by the laws of the province Ontario and the laws of Canada applicable therein. The Website through which the NewAce Software may be downloaded is controlled by NewAce from its facilities in Ontario, Canada. NewAce makes no representations that the NewAce Software is appropriate or available for use outside of Canada and such use is your sole responsibility. This Agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Without limiting your agreement to arbitrate disputes as set out below in paragraph 22, Ontario shall be the exclusive forum for all disputes.
14. Customer Information. NewAce may, from time to time, market to you, directly or indirectly, additional products and services. In connection with the offering of these products and services, you authorize NewAce to disclose any information in your file to our agents, dealers or related companies. Should you not wish to be contacted for such purposes, or not wish that your information be used for such purposes, you can notify us of your decision by sending an email to firstname.lastname@example.org.
You confirm that the personal information provided to NewAce is correct. You further agree to the following: (i) the information will be used by NewAce to manage your customer's file (credit, billing, collection), (ii) the information in said file will be accessible, but only in connection, when necessary, with the subject of the file, to employees or representatives of NewAce in the performance of their duties, and (iii) your customer's file will be maintained at our offices located at 26-27 Turner Drive, Sarnia, Ontario. You may consult all personal information contained in your file, at said location, during regular business hours, by submitting a written request to us. You may also request, as the case may be, the rectification of any personal information contained in said file. If, for any reason, the request for access or rectification is refused, the grounds for such refusal will be communicated to you in writing. If a photocopy of the personal information contained in your file is requested, reasonable charges, which will be communicated to you beforehand, may be imposed.
15. NewAce Software and Service Provided "As Is". THE NEWACE SOFTWARE AND THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEWACE DOES NOT WARRANT THE PERFORMANCE, AVAILABILITY, UNINTERRUPTED USE OF OR OPERATION OF THE INTERNET, YOUR CONNECTION TO THE INTERNET, THE SOFTWARE OR ANY FEATURE OF THE SERVICE. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY AND PERFORMANCE OF THE SERVICE IS WITH YOU. FURTHER, NEWACE DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO YOU (WHETHER BY E-MAIL OR OTHERWISE) WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM, OR TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME. NEWACE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS WHATSOEVER (INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE NEWACE SOFTWARE OR THE SERVICE OR ANY MERCHANDISE, INFORMATION OR SERVICE AVAILABLE ON THE INTERNET OR OTHERWISE THROUGH THE SERVICE(S), AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED. SOFTWARE GENERALLY IS KNOWN TO CONTAIN TECHNICAL INACCURACIES, BUGS AND TYPOGRAPHICAL ERRORS. ALTHOUGH NEWACE HAS MADE AN EFFORT TO ENSURE THE PROPER FUNCTIONING OF THE NEWACE SOFTWARE, IT MAY CONTAIN SUCH TECHNICAL IRREGULARITIES. NEWACE WILL ATTEMPT TO RESOLVE PROBLEMS IN A REASONABLY EXPEDIENT MANNER.
16. Limitation of Liability. UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL NEWACE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEES AND THE SERVICE FEES YOU HAVE PAID TO DATE, INCLUDING, WITHOUT LIMITIATION ANY LIABILITY FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING: LOSS OF PROFITS; LOSS OF EARNINGS; LOSS, THEFT, DESTRUCTION, INTERCEPTION, MISDELIVERY OR ALTERATION OF DATA OR OTHER INFORMATION; LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES (INCLUDING DEATH); OR ANY OTHER FORESEEABLE OR UNFORESEEABLE LOSS RESULTING DIRECTLY OR INDIRECTLY OUT OF, PERTAINING IN ANY WAY TO OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT, THE NEWACE SOFTWARE OR THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE, EVEN IF NEWACE HAS BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(B) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES AND COURT COSTS) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, ANY CLAIM THAT THE USE OR INTENDED USE OF THE NEWACE SOFTWARE OR THE SERVICE INFRINGES THE COPYRIGHT, PATENT, TRADE-MARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
THESE LIMITS APPLY TO ANY ACT OR OMISSION OF NEWACE, ITS OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR SUPPLIERS, WHETHER OR NOT SUCH ACTS OR OMISSIONS WOULD OTHERWISE GIVE RISE TO CLAIMS OR CAUSES OF ACTION IN CONTRACT, TORT, PURSUANT TO STATUTE OR PURSUANT TO ANY OTHER DOCTRINE OF LAW.
17. Your Hardware and Software. Should the hardware of your computer(s) be damaged as a result of NewAce's gross negligence, we agree to pay for the repair or replacement of the damaged parts up to a maximum of $1,000, provided that you report the damage to your computer(s) to NewAce in writing within 2 weeks of the date that your computer(s) sustain the damage. NewAce will not be liable for any damage to or loss or destruction of any software, files or data. You may not bring any claim, suit or proceeding against NewAce more than one year after the cause of action arose.
18. Ownership of Addresses. NewAce owns all addresses provided to you, including, but not limited to IP addresses, e-mail addresses and personal web page addresses, as applicable. NewAce may modify, change or remove such addresses at any point in time and will in no way be required to compensate you for such changes. You are permitted to use (but not register with any organization) only those IP addresses NewAce has provided you.
19. Content. You acknowledge and agree that there is some content accessible through the Service(s) that may be offensive to you, or that may not be in compliance with applicable law. For example, it is possible to obtain access to content that is pornographic, obscene, or otherwise inappropriate or offensive, particularly for children. NewAce assumes no responsibility for and exercise no control over the content contained accessible through the Service. You agree that all content that you access using the Service is accessed and used by you at your own risk, and that we will not be liable for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to your access to such content.
20. Your Responsibility for Security. The Service uses resources that are shared with many other customers. Moreover, the Service is accessible through the Internet, which is used by millions of other users. You are solely responsible for taking the necessary precautions to protect yourself and your equipment, software, files and data against any risks inherent in the use of this shared resource. Without limiting this responsibility:
(a) you are solely responsible for the security of any device which you choose to connect to the Service, including any data stored on such device. In particular, we strongly recommend against enabling file or printer sharing of any sort;
(b) via the Service, there are certain applications that may allow an individual to gain unauthorized access to your computer(s). If you choose to run such applications, you should take the appropriate security measures; and
(c) you are solely responsible for any and all data, including, without limitation, encrypted data, that is sent to, stored on or retrieved from any server utilized in providing the Service to you. NewAce makes no representations or warranties regarding the viability, integrity or robustness of any encryption used by us or our affiliates, suppliers or agents.
NewAce will not be liable for any claims, losses, actions, damages, suits or proceedings resulting from, arising out of or otherwise relating to your failure to take appropriate security measures.
21. Indemnification. You hereby agree to indemnify, defend and hold harmless NewAce and its affiliates, suppliers and agents (and their respective employees, directors and representatives) from and against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by NewAce or its affiliates, suppliers or agents arising out of or relating to: (a) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (b) your use of or inability to use the Service; (c) any content or software displayed, distributed or otherwise disseminated by you using the Service(s); or (d) your violation, alleged violation or misappropriation of any intellectual property right or non-proprietary right of a third party.
22. Arbitration. Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) arising out of or relating to: (a) this Agreement; (b) the NewAce Software or the Service; (c) oral or written statements, advertisements or promotions relating to this Agreement the NewAce Software or to the Service; or (d) the relationships which result from this Agreement (including relationships with third parties who are not signatories to this Agreement) (collectively the "Claim"), will be referred to and determined by a sole arbitrator (to the exclusion of the courts). You agree to waive any right you may have to commence or participate in any class action against NewAce related to any Claim and, where applicable, you also agree to opt out of any class proceedings against NewAce.
If you have a Claim you should give written notice to arbitrate to NewAce at: NewAce Corporation, P.O. Box #456 STN MAIN, Sarnia, ON, N7T 7J4, Canada. If NewAce has a Claim it will give you notice to arbitrate at your billing address. Arbitration of Claims will be conducted in such forum and pursuant to such rules as you and NewAce agree upon, and failing agreement will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the province of Ontario.
23. Multiple Users. You agree to cause all persons who use the NewAce Software or Service through your computer(s) to observe and comply with the terms and conditions of this Agreement respecting such use. You further agree that you are solely responsible and liable for any and all breaches of the terms and conditions of this Agreement, whether such breach is the result of use of NewAce Software or the Service by you or by any other user of your computer(s).
24. General. This Agreement and the policies referred to herein, constitute the entire agreement and understanding between you and NewAce with respect to the subject matter of this Agreement and shall supersede and replace all prior contracts, agreements, representations and understandings, written or oral, regarding such subject matter, including, without limitation, all previously signed agreements with NewAce for prior versions of the NewAce Software. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect our original intentions and the remainder of the provisions shall remain in full force and effect. NewAce's failure to insist upon or enforce strict performance of any provision of this Agreement does not mean that it has waived any provision or right in this Agreement. NewAce will only be deemed to have waived its rights under this Agreement if it does so expressly in writing by a duly authorized representative. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. This Agreement shall enure to the benefit of, and shall be binding on, both you and NewAce and the parties' respective heirs, legal personal representatives, successors and assigns.