End user agreement for HeatSeek
TERMS OF SERVICE AND END-USER LICENSE AGREEMENT
IMPORTANT NOTICE -- THE TERMS AND CONDITIONS CONTAINED HEREIN CONSTITUTE A BINDING LEGAL AGREEMENT.
This Terms of Service And End-User License Agreement (hereafter referred to as the "AGREEMENT") contains the entire agreement between SUN RIVER SYSTEMS, INC. (hereafter referred to as "LICENSOR") and You, the End User (hereafter interchangeably referred to as "You" or "LICENSEE") for the use of software identified as HEATSEEK (hereafter referred to as the “SOFTWARE PRODUCT).
The Software Product is licensed, pursuant to the terms of this License Agreement, not sold. Please read this License Agreement carefully before downloading the installing the Software Product on your computer. By downloading and installing, copying, or otherwise using the SOFTWARE PRODUCT, You, as Licensee, agree to be bound by all the terms and conditions of this AGREEMENT.
If You do not agree with the terms and conditions of this Agreement, promptly delete all copies of the Software Product in your possession or control and do not use it for any purpose.
1. DEFINITIONS. As used in this Agreement the term "Software Product" includes (a) the "Heatseek" software that Licensor makes available to the end user by download from Licensor's website, www.heatseek.com; and (b) any bug fixes, upgrades, modified version or updates to the Software Product (collectively referred to as "Updates") that Licensor may provide or make available to licensed end users, including You. The terms "Use", "Used" or "Using" means to access, install, download, copy or benefit from using the functionality of the Software Product.
2. GRANT OF NON-EXCLUSIVE LICENSE AND LIMITATIONS OF USE. Subject toYour acceptance of all of the terms and conditions of this Agreement, LICENSOR grants You a limited, non-exclusive, personal, non-sub licensable, non-assignable license to install and Use the SOFTWARE PRODUCT, and any future fixes, updates and upgrades provided to You, on a single computer.
2.1 This SOFTWARE PRODUCT is licensed, not sold, to You by LICENSOR for Use only under the terms and conditions of this Agreement, and LICENSOR reserves all rights not expressly granted to You herein.
2.2 The SOFTWARE PRODUCT can only be Used on a single computer at one time. This means that the SOFTWARE PRODUCT should be loaded on only one hard drive at a time. If You wish to Use this SOFTWARE PRODUCT on more than one computer, you must either erase the SOFTWARE PRODUCT from the first computer's hard drive when You move it to a second hard drive, or else purchase two copies of the SOFTWARE PRODUCT. You may not under any circumstances have this SOFTWARE PRODUCT loaded onto the hard drives of two of more computers at the same time. The SOFTWARE PRODUCT may be executed from a common disk shared by multiple computers provided that one authorized copy of the SOFTWARE PRODUCT has been licensed for each computer executing the software. You shall have the right to make one copy of the SOFTWARE PRODUCT solely for backup or archival purposes. Any copy of this SOFTWARE PRODUCT that You make is subject to the terms and conditions of this Agreement.
2.3 Unless explicitly stated otherwise, any new features that augment or enhance the current SOFTWARE PRODUCT, including any updates or upgrades, shall be subject to the terms of this Agreement.
2.4 Retention of Intellectual Property Right by LICENSOR. The SOFTWARE PRODUCT is the intellectual property of, and owned by LICENSOR. The structure, organization and code of the SOFTWARE PRODUCT are the valuable trade secrets and confidential information of LICENSOR. The SOFTWARE PRODUCT is protected by copyright, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which it is being used. United States copyright laws prohibit you from making any other copy of the software for any reason without LICENSOR’s permission. Except as expressly stated herein, this Agreement does not grant You any intellectual property rights in the SOFTWARE PRODUCT, and all rights not expressly granted are reserved by LICENSOR
2.5 LICENSOR retains and reserves all rights to the trademarks, "Heatseek" and "Heatseek.com", and nothing in this Agreement shall be construed as conveying any rights to said trademarks to LICENSEE.
3. RESTRICTIONS OF USE AND LICENSOR WARRANTIES. The grant of rights under this AGREEMENT is limited by the following restrictions and the following warranties made by LICENSEE TO LICENSOR, and LICENSEE further agrees that a breach of any of these restrictions or warranties by LICENSEE shall constitute a material breach of this Agreement:
3.1 LICENSEE may not rent, lease, sublicense, give away, lend, transfer or distribute the SOFTWARE PRODUCT, or create derivative works based upon the SOFTWARE PRODUCT in whole or part or in anyway transmit the SOFTWARE PRODUCT to any third party without the express prior written consent of Licensor and the payment of a Licensing fee to Licensor or each said transfer or dissemination. Licensee may in its absolute discretion refuse to permit any transfer or distribution of the SOFTWARE PRODUCT to third parties.
3.2 LICENSEE shall not incorporate or Use any of the SOFTWARE PRODUCT in any spam email, or any other unsolicited advertising materials; furthermore, LICENSEE shall not distribute any spam email or any other unsolicited advertising materials to any person, anywhere, which incorporates or Uses any of the SOFTWARE PRODUCT.
3.3 LICENSEE warrants that at the time of the purchase and downloading or other Use of the SOFTWARE PRODUCT, LICENSEE was over the age of eighteen (18) years of age. This SOFTWARE PRODUCT is specifically intended for Use only by individuals who are eighteen (18) years of age or older and LICENSOR is relying upon the truthfulness of Your representation and warrantee that You are at least 18 years of age; LICENSOR would not enter this Agreement with You and would not allow You to access or otherwise Use the SOFTWARE PRODUCT but for Your representation and warrantee that You are at least 18 years of age.
IMPORTANT LEGAL NOTICE. If You have obtained or Use the SOFTWARE PRODUCT through Your misrepresentation to LICENSOR that You are over the age of eighteen (18) years of age, or if you are not over the age of eighteen (18) years of age, Your POSSESSION AND USE of the SOFTWARE PRODUCT IS UNLAWFUL AND WITHOUT LICENSOR's AGREEMENT, AUTHORIZATION OR APPROVAL; furthermore, Your unlawful possession and unauthorized Use of the SOFTWARE PRODUCT constitutes an intentional infringement of LICENSOR’s copyright that could subject You to criminal and civil penalties.
3.4 LICENSEE warrants that LICENSEE has acquired this SOFTWARE PRODUCT in a jurisdiction where the possession, Use or distribution of the SOFTWARE PRODUCT does not violate contemporary community standards; and LICENSEE further warrants that LICENSEE only intends to Use the SOFTWARE PRODUCT in a jurisdiction where the possession and Use of the SOFTWARE PRODUCT does not violate contemporary community standards.
3.5 LICENSEE warrants that LICENSEE shall not Use the SOFTWARE PRODUCT to unlawfully reproduce, copy or download materials in violation of the copyright or other property rights of any person or entity.
3.6 LICENSEE further warrants that LICENSEE shall not Use the SOFTWARE PRODUCT to do any of the following prohibited acts:
(a) 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;
(b) Harm minors in any way;
(c) Impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with a person or entity;
(d) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any data transmitted to other users;
(e) 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);
(f) Transmit, access or communicate any data that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(g) 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 any telecommunications equipment;
(i) Interfere with or disrupt the SOFTWARE PRODUCT;
(j) 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;
(l) Monitor traffic or make search requests in order to accumulate information about individual users or collect or store personal data about other users; or
(m) Modify, delete or damage any information contained on the personal computer of any Software user.
3.7 If LICENSEE Uses the SOFTWARE PRODUCT in any way to access or download adult material or content of any kind, LICENSEE warrants to LICENSOR that LICENSEE shall only Use the SOFTWARE PRODUCT to access or download adult material or content that is fully legal, and that all access and downloading of any adult content through the Use of the SOFTWARE PRODUCT shall occur only in jurisdictions where the downloading and possessing of such adult content and material by LICENSEE is within the contemporary legal standards of the jurisdiction.
3.8 Export Law Assurances. You may not Use or otherwise export or re-export this SOFTWARE PRODUCT except as authorized by United States law and the laws of the jurisdiction in which the SOFTWARE PRODUCT was obtained. In particular, but without limitation, the SOFTWARE PRODUCT may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria), or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons’ List or Entity List. By Using the SOFTWARE PRODUCT, 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.
4. THIRD- PARTY COPYRIGHT INFRINGEMENT. LICENSOR does not condone the violation of copyright and other laws. LICENSOR requires all LICENSEES to Use the SOFTWARE PRODUCT in strict compliance with copyright and other laws. LICENSOR does not, by the supply of the SOFTWARE PRODUCT, authorize or encourage You to infringe the copyright or other rights of third parties.
4.1 As a condition to Use the SOFTWARE PRODUCT, You agree that You must not use the SOFTWARE PRODUCT to infringe upon the intellectual property or other rights of others in any way. The unauthorized reproduction, distribution, modification, public display, communication to the public or public performance of copyrighted works is an infringement of copyright.
4.2 Users are entirely responsible for their conduct in the Use of the SOFTWARE PRODUCT and for ensuring that said conduct complies with all applicable copyright and data-protection laws. In the event a User fails to comply with laws regarding copyrights or 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.
5. DISCLAIMER OF WARRANTIES AND REMEDIES; INDEMNITY.
5.1 No Warranty; Disclaimer. YOUR USE OF THE LICENSED SOFTWARE IS AT YOUR SOLE RISK. THE LICENSED SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY, AND ITS LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT (i) THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE LICENSED SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LICENSED SOFTWARE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE LICENSED SOFTWARE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE LICENSED SOFTWARE WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE LICENSED SOFTWARE IS OBTAINED 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 OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE LICENSED SOFTWARE SHALL CREATE ANY WARRANTY.
5.2 Limitation of Damages. NEITHER COMPANY NOR ANY OF ITS LICENSORS OR SUPPLIERS WILL HAVE ANY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW YOU RELEASE COMPANY AND ALL OF ITS LICENSORS AND SUPPLIERS FROM ANY, LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE) FOR ANY DAMAGES SUSTAINED BY YOU ARISING FROM THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA, SAVINGS, OR PROFITS OR THE COST OF PROCURING SUBSTITUTE GOODS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY 'S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED $50.00.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. COMPATIBILITY. Company does not warrant that the SOFTWARE PRODUCT will be compatible with Your hardware or other software installed on Your computer system. Compatibility issues may cause Your computer's performance to suffer. In the event that the SOFTWARE PRODUCT is not compatible with Your hardware or other software installed on Your computer system, You should Uninstall the SOFTWARE PRODUCT. Like all software, the SOFTWARE PRODUCT utilizes some of Your computer's resources to run, including system memory and Internet connection. Use of the SOFTWARE PRODUCT on a computer with inadequate system resources will cause such computer's performance to suffer.
7. THIRD-PARTY LINKS. The SOFTWARE PRODUCT may display links to various third-party web sites, including without limitation web sites containing adult content or materials. None of the third-party web sites whose links are presented through the use of the SOFTWARE PRODUCT is under the control or direction of LICENSOR. LICENSOR does not have any participation in, or control over the selection or display of any content, including without limitation any explicit adult content, or any other information, data, communications or materials contained in or displayed on any third party web sites whose links are made available through the SOFTWARE PRODUCT. These links made available only for Your convenience and You therefore access them at Your own risk.
8. USER INFORMATION. LICENSOR does not collect any personal information about the USER of the SOFTWARE PRODUCT. However, in connection with the administration of its Webmaster Affiliate Program, LICENSOR does identify and track the third-party website that referred the User to LICENSOR’s Website through the use of a browser "cookie".
9. TERMINATION OF AGREEMENT. Without prejudice to the exercise of any other rights, LICENSOR may terminate this Agreement if You fail to comply with the terms and conditions of this Agreement, or if You have breached Your warrantees. In such event, You must destroy all copies of the SOFTWARE PRODUCT and all its component parts.
10. WAIVER OF CONFLICT. LICENSEE hereby acknowledges and agrees that the terms of this LICENSE AGREEMENT are reasonable and fair; all terms have been fully disclosed in writing, LICENSEE has been given a reasonable chance to seek advice of independent counsel with respect to this AGREEMENT prior to LICENSEE’S downloading and installing, copying, or otherwise Using the SOFTWARE PRODUCT, and that LICENSEE’S acts of downloading, installing, copying, or otherwise Using the SOFTWARE PRODUCT hereby constitutes LICENSEE’s acceptance of and agreement to all of the terms and conditions of this AGREEMENT.
11. INTEGRATION; AMENDMENT; NONWAIVER. This Agreement constitutes the entire agreement of LICENSOR and LICENSEE with respect to the subject matter hereof, and supersedes and cancels all other prior Agreements, discussion, or representations, whether written or oral. No modification of this Agreement shall be enforceable unless reduced to writing and signed by duly authorized representatives of LICENSOR and LICENSEE. No officer, employee or representative of LICENSOR or LICENSEE has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement. LICENSEE acknowledges and agrees that the failure of LICENSOR to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder.
12. GOVERNING LAW; JURISDICTION. LICENSOR AND LICENSEE agree that this Agreement and all legal rights, obligations and duties arising by virtue of this AGREEMENT shall be governed by and construed according to the laws and judicial decisions of the State of CALIFORNIA and the United States when applicable. In case of any litigation regarding this Agreement, LICENSEE hereby agrees that the venue for such litigation shall be, depending on the subject matter of the dispute, either the state courts of CALIFORNIA or the Federal District Court in SAN FRANCISCO, CALIFORNIA.