End user agreement for Chirp
Plum Canary Corporation
Combined End User License Agreement For Chirp Software and Plum Canary Sync Service Agreement
END USER LICENSE AGREEMENT SECTION----------
PLEASE READ THE FOLLOWING BEFORE USING THIS SOFTWARE: THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE END USER, AND PLUM CANARY CORPORATION ("PLUM CANARY"). PRIOR TO INSTALLING OR USING THIS SOFTWARE, YOU MUST READ AND ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY DESTROY OR RETURN THE SOFTWARE AND ACCOMPANYING DOCUMENTATION TO PLUM CANARY.
This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and PLUM CANARY for the PLUM CANARY software product identified above, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or use the SOFTWARE PRODUCT.
The SOFTWARE PRODUCT is protected by copyright laws and international copyright treaties, as well as other international intellectual property laws and treaties. Upon your acceptance of this EULA, PLUM CANARY grants to you a nonexclusive license to use the SOFTWARE PRODUCT, provided that you agree to the following:
1. GRANT OF LICENSE. The SOFTWARE PRODUCT is licensed, not sold. You own a copy of any media on which the SOFTWARE PRODUCT may be shipped, but not a copy of the SOFTWARE PRODUCT itself. PLUM CANARY retains all title, copyrights, and other intellectual property rights in the SOFTWARE PRODUCT and any copies thereof. You may install and use a copy of the SOFTWARE PRODUCT on as many personal computers as permitted by the specific purchase transaction you executed with PLUM CANARY when you purchase the SOFTWARE PRODUCT, provided you have accepted the terms of this EULA. You may also make copies of the SOFTWARE PRODUCT for backup and archival purposes. The SOFTWARE PRODUCT is made available for installing or downloading solely for use by end users. Any reproduction or redistribution of the SOFTWARE PRODUCT not in accordance with this EULA is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE PRODUCT TO ANY SERVER OR LOCATION OR ANY PEER TO PEER NETWORK FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
2. RESTRICTIONS. You must maintain all copyright notices on all copies of the SOFTWARE PRODUCT. You may not distribute copies of the SOFTWARE PRODUCT to third parties. You may not modify, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code of the SOFTWARE PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not rent, lease, or lend the SOFTWARE PRODUCT, or transport the SOFTWARE PRODUCT outside of the country in which it was acquired.
3. TERMINATION. Your rights under this EULA terminate upon your termination of this EULA, or without prejudice to any other rights, PLUM CANARY may terminate this EULA if you fail to comply with its terms and conditions. In such event, you must destroy all copies of the SOFTWARE PRODUCT.
4. DUTY TO BACKUP It is your responsibility to maintain an archival copy of the SOFTWARE PRODUCT and to perform periodic backups of all data and programs used in conjunction with the SOFTWARE PRODUCT to prevent loss.
5. COMMON PROVISIONS. Some of the terms of this agreement apply to both the SOFTWARE PRODUCT and the PCSS, and are listed in the section below entitled "Provisions common to both EULA and PCSS." You agree that these provisions are applicable to this section of this end user license agreement.
6. OTHER COMPONENT SOFTWARE. Your acceptance of this agreement constitutes acknowledgment that the SOFTWARE PRODUCT contains open source component software from the following sources. The license agreement for that component software, along with the source code for each respective component (though not for the complete SOFTWARE PRODUCT) may be obtained from the indicated URL (Internet-based Uniform Record Locator):
- This product includes software developed by the Eclipse foundation (covered by the Eclipse Public License, see http://www.eclipse.org)
- This product includes software developed by the Apache Software Foundation (http://www.apache.org)
- This product includes software developed by the MX4J project (http://mx4j.sourceforge.net).
- This product includes ANTLR software (public domain, see http://www.antlr.org)
- This product includes installer software developed by Nullsoft, Inc. (public domain, see http://nsis.sourceforge.net)
- This product includes licensed software from Funambol, Inc.
Sync Service Agreement and Acceptable Use Policy Section ---------
This section of this agreement contains the provisions applicable to, and the acceptable use policy (the "Agreement" or the "AUP") for your use of the Plum Canary Synchronization Service ("PCSS").
IF THIS PORTION OF THIS AGREEMENT, OR ANY FUTURE CHANGES TO IT ARE UNACCEPTABLE TO YOU, YOU SHOULD DISCONTINUE USING PCSS. YOUR CONTINUED USE OF PCSS NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY SUCH CHANGES, WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT, AND OF ANY SUCH CHANGES.
7. USING PCSS
PCSS is designed to be used in conjunction with your use of PLUM CANARY software products as released by PLUM CANARY from time to time. To use a PCSS account, you must be at least 13 years old (or, for non-U.S. users, such older minimum age as may be required by applicable local law). If you are under the required age, you may still use PCSS (subject to applicable local non-U.S. law), but only if the account you are using was created and registered by your parent or legal guardian.
When you accept this Agreement and complete the PCSS registration process, you become the account holder. As a PCSS account holder, PLUM CANARY provides you with a limited, non-exclusive license for no more than the term of your subscription (or, if you are a trial user, for the term of your trial period) to use the user name and password provided to you for your account. Your user name, when confirmed by PLUM CANARY, is your on-line identity. Do not reveal your password to other users. Your account is at risk if you let someone use it inappropriately.
As used in this Agreement, "Content" means the text, software, communications, images, sounds, and all other information and materials you encounter or generate through your account or on-line through the Internet.
8. TRIAL PERIOD USE
If you elect to become a PCSS user, you agree to pay all charges for PCSS at the prices set forth on the PCSS site and upon the terms set forth on that site and in this Agreement. All charges are exclusive of any value added tax ("VAT"), sales tax or other taxes, except as required by applicable law. PLUM CANARY reserves the right to change prices or to institute new charges for PCSS or any portion of PCSS at any time, upon prior notice. Price changes and institution of new charges implemented during your subscription period will apply to subsequent subscription periods and to all new PCSS users after the effective date of the change. All pricing changes will be posted on the PCSS site, and such posting shall be considered sufficient notice to you of such changes. You are responsible for regularly reviewing pricing information as posted so that you have notice of such changes. Your continued use of PCSS, or your failure to terminate your subscription, after any such changes are posted (or effective) will constitute your acceptance of the prices for subsequent subscription periods.
Consult your PCSS account page for details on billing currency for services purchased on-line. Invoices will be provided electronically to the email account you designate in your PCSS profile. PLUM CANARY will charge the periodic PCSS subscription fee, and any fees for additional PCSS features or services, to the credit card account provided by you. You also agree that PLUM CANARY may automatically charge your credit card for renewal of your subscription without further authorization from you, unless and until you provide PLUM CANARY with at least five (5) days prior notice that you do not wish to renew your subscription to PCSS or that you wish to change your previously designated credit card account. You may provide notice that you do not wish to renew your PCSS subscription on the Profile page of your PCSS account. Near the end of your subscription period, you will receive an email to your then-configured email address. The email will remind you that the credit card you used for your original subscription will be billed on the anniversary date of the subscription period. If you do not elect to renew your subscription, all Content you have created and stored on PCSS may be deleted at the expiration of your subscription period. (See "Authorization to Remove Content", below.)
If payment is not received by PLUM CANARY from your credit card issuer or its agents, you agree to pay all amounts due from you for your PCSS subscription, upon demand by PLUM CANARY.
PLUM CANARY will accept cancellations of your subscription (and any "add-on" service) within the first thirty (30) days of your annual subscription, and you will receive a prorated refund for the remainder of that annual subscription period. Applicable local law may vary this policy.
Please note that boxed versions of PCSS software purchased through other vendors must be returned to the original place of purchase and must follow the returns and refunds policies of those vendors.
11. AVAILABILITY OF THE SERVICE
While PLUM CANARY makes reasonable efforts to ensure that PCSS is available at all times, PLUM CANARY does not guarantee, represent or warrant that PCSS services will be uninterrupted or error-free, and PLUM CANARY does not guarantee that users will be able to access or use all the PCSS features at all times.
PLUM CANARY also does not guarantee or warrant that any Content you may have in your account at PCSS will not be subject to inadvertent damage, corruption or destruction. You are responsible for backing up, on your own computer, any important documents, images or other Content. Unless otherwise expressly provided in the terms of any service or feature offered in PCSS, PLUM CANARY will not be responsible for any archiving or backup of any such information. If any data, messages, images or other Content in your account and stored on the PCSS system is damaged, lost or corrupted in any way, PLUM CANARY will have no obligation or liability to you except as otherwise expressly set forth in any applicable individual software license agreement for any particular PCSS feature or service.
12. ACCEPTABLE USE POLICY GUIDELINES
It is important to remember that there are rules and standards that you must abide by when you use PCSS, whether you are using PCSS on a trial basis or as a paying user. These rules and standards are described in this Agreement. As a PCSS user, you agree to comply with this Agreement, and you acknowledge that PLUM CANARY has the right to enforce this Agreement in its sole discretion. This means that if you, or anyone using your PCSS account (including anyone using any sub-account you may establish under your main account), violate the terms of this Agreement, PLUM CANARY may take any and all appropriate actions â€” this can range from the issuance of a warning about a violation to the termination of your access privileges for PCSS to legal action â€” as PLUM CANARY deems necessary or appropriate. PLUM CANARY is not required to provide notice prior to terminating your PCSS access for violating these rules and standards, but it may choose to do so.
You are solely responsible for your conduct, and the conduct of anyone using your account, while using PCSS, including the contents of all electronic data generated or forwarded by you or sent to you, and all Content in any databases, or other transmissions, information, images or other interactions generated, transmitted or maintained on or through your PCSS account. PLUM CANARY will not be responsible or liable in any way for any such on-line distribution or publication. PLUM CANARY cannot and will not review every message or other content which may generated or posted on or through your account (although PLUM CANARY reserves the right to monitor users' use of PCSS â€” see "Investigations," below), and PLUM CANARY will not be responsible for anything in any of those messages or Content.
PLUM CANARY reserves the right to delete, move or edit any item (such as task items and assignments generated by PLUM CANARY's Chirp software, or other Content) that PLUM CANARY, in its sole discretion, deems abusive, defamatory, obscene, in violation of copyright or trademark laws, or otherwise illegal, inappropriate or unacceptable, including any material PLUM CANARY believes may subject PLUM CANARY to any liability or which may cause PLUM CANARY to lose the services of any supplier, including but not limited to any Internet Service Providers (ISPs) which may provide services to PCSS users.
A user's use of PCSS should conform to the requirements of the law, respect for the rights of other users of PCSS and third parties, and current standards for communicating on-line. By your use of PCSS, you agree to use appropriate conduct and language when you are online â€” this includes (but is not limited to) following the rules of any ISP, any other on-line services, this Agreement and all applicable state, local and federal laws (including non-U.S. law where appropriate).
PLUM CANARY reserves the right to terminate your access to PCSS at any time, with cause or without cause, in the event of any breach of this Agreement by you (or anyone using your account or any sub-account), your infringement of PLUM CANARY's or PCSS's or others' intellectual property, or any other circumstances which, in PLUM CANARY's sole discretion, merit termination. Any such termination may, if PLUM CANARY elects (and subject to applicable law), be without any refund to you of any prepaid fees or amounts.
Inappropriate conduct falls into a number of categories. The more commonly understood categories are discussed below, although this list is not exclusive.
13. ILLEGAL, TORTIOUS AND PROHIBITED CONDUCT
PCSS may be used only for lawful and proper purposes. The laws and rules that apply in the off-line world must be obeyed on-line as well. Posting, transmitting, promoting, using, distributing or storing Content that could subject PLUM CANARY to any legal liability, whether in tort or otherwise, or that is in violation of any applicable law or regulation, or otherwise contrary to commonly accepted community standards, is prohibited, including information and material protected by copyright, trademark, trade secret, nondisclosure or confidentiality agreements, or other intellectual property rights, and material that is obscene, defamatory, constitutes a threat, or violates export control laws. If PLUM CANARY elects to terminate your right to use PCSS as a result of any illegal or prohibited conduct, PLUM CANARY may elect, in its sole discretion (subject to applicable law), not to refund any prepaid fees or other amounts to you.
Examples of prohibited conduct are:
* Posting obscene Content (including child pornography)
* Planning illegal activity, such as building a bomb or counterfeiting money
* Advertising a lottery, ammunition, firearms, tobacco, alcohol, illegal drugs and drug-related paraphernalia
* Pretending to be anyone you are notâ€”you may not impersonate or misrepresent yourself as another person (including celebrities), another PCSS user, an PLUM CANARY employee, or a civic or government leader; PLUM CANARY reserves the right to reject or block any PCSS user name which could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person's name or identity
* Using false statements to get, or to attempt to get, account information or other private information from other PCSS or Internet users
* Engaging in copyright infringement or other intellectual property infringement, or disclosing trade secret or confidential information in violation of a confidentiality or nondisclosure agreement
* If you believe that illegal, tortious or other prohibited Content is being transmitted through any PCSS service, you may report it by filling out the abuse reporting form located in the "Reporting Abuse" section of the PCSS Help system.
PLUM CANARY reserves the right to cooperate with law enforcement authorities, including complying with warrants, court orders and subpoenas. If PLUM CANARY decides to investigate or resolve possible misuse involving you or anything you do on PCSS, PLUM CANARY is entitled to disclose any information about you in PLUM CANARY's possession in connection with your use of PCSS and anything you do with PCSS to law enforcement or other government officials, as PLUM CANARY in its sole discretion believes to be necessary or appropriate. By your acceptance of this Agreement and your use of PCSS, you authorize PLUM CANARY to take any such actions.
14. OBJECTIONABLE CONDUCT AND CONTENT
It is essential that all Content on PCSS reflect the provisions of this Agreement. PLUM CANARY reserves the right to remove Content if PLUM CANARY becomes aware of any Content in any PCSS area which, in PLUM CANARY's judgment, does not conform to this Agreement. PLUM CANARY may send you a warning about the violation of this Agreement if your PCSS account was responsible for putting objectionable Content on-line, but we reserve the right not to do so. At all times, PLUM CANARY reserves the right to terminate, with or without notice, the accounts of PCSS users who violate this Agreement. In such case, you will not be entitled to any refund of your annual subscription fee or of any additional fees you may have paid for upgraded services (subject to applicable law).
Examples of objectionable conduct and Content that violate the PCSS acceptable use policy are:
* Harassing, threatening, or embarrassing another PCSS or Internet user, including unsolicited commercial communications
* Stalking another PCSS or Internet user ("cyberstalking")
* Transmitting, storing or facilitating distribution of Content that is harmful, abusive, violent, racially or ethnically offensive, lewd, vulgar or (in a reasonable person's view) objectionable
* If you are an adult, requesting personal or other information from a minor (any person under the age of 18 or, in non-U.S. areas, such other age as local law defines as a minor) who is not personally known to you, including but not limited to any of the following: full name or last name, home address, zip code, telephone number, picture, or the names of the minor's school, church, athletic team or friends
* Posting Content that defames, abuses or threatens physical harm to others or yourself
Please remember that these are only guidelines; there are always "gray areas." Ask yourself if your communication is something that you would say in a room full of people you never met, or in the workplace. However, PLUM CANARY reserves the right to make the final determination about whether Content is objectionable or not.
If you encounter something you find inappropriate, you may report it by filling out the abuse reporting form located in the "Reporting Abuse" section of the PCSS Help system.
15. COPYRIGHT AND INTELLECTUAL PROPERTY INFRINGEMENT
Much of the Content available through PCSS is owned by others, and is protected by copyrights, trademarks, rights of publicity and other intellectual property rights. Before you upload or download any Content while using PCSS, make sure you have been given the legal right to do so by the owner of the content.
Making unauthorized copies of any Content can lead to the termination of your PCSS access (without any refund of any prepaid fees or other amounts, subject to applicable law) and may even subject you to legal action. In addition, the owner of the Content may take criminal or civil action against you. If a Content owner takes legal action against PLUM CANARY because of your unauthorized use of Content, you agree (to the extent permitted by applicable law) to hold harmless and indemnify PLUM CANARY, its subsidiaries, affiliates, related companies, employees, officers, directors, agents and suppliers against any liability, claims, or demands, including the costs of PLUM CANARY hiring attorneys to defend against the action.
By submitting or posting Content on areas of PCSS accessible by the public, you are representing that you are the owner of such material or have authorization to distribute it. You hereby grant PLUM CANARY a worldwide, royalty-free, non-exclusive license to reproduce, modify, adapt and publish any such public area Content solely for the purpose of displaying, distributing and promoting the area on which such Content is posted. Said license will be in effect only as long as you are a PCSS account holder (including any trial period use), and will terminate upon removal of such Content from the public area or when you are no longer a PCSS user or user, whichever happens first.
If you believe that any Content in which you claim copyright has been infringed by anyone using PCSS, please contact PLUM CANARY's agent (see below), and provide the following information, as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. 512):
* A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
* Identification of the copyright work claimed to have been infringed, or (if multiple copyrighted works at a single on-line site are covered by a single notification) a representative list of such works at that site;
* Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit PLUM CANARY to locate the material;
* Information reasonably sufficient to permit PLUM CANARY to contact the complaining party;
* A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
* A statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
PLUM CANARY's copyright agent for notice of claims of copyright infringement on or regarding PCSS can be reached as follows:
By email: firstname.lastname@example.org
Jay Batson, President
Plum Canary Corporation
773 Winter St.
North Andover, Massachusetts, U.S.A.
Phone: (978) 824-0111
Fax: (978) 688-1306
16. VIOLATIONS OF SYSTEM AND NETWORK SECURITY
Violations of system and network security are prohibited, and may result in criminal and civil liability. PLUM CANARY will investigate incidents involving such violations and may involve and will report any suspected criminal activity to and cooperate with law enforcement. Examples of system and network security violations include the following:
* Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without the express authorization of the owner of the system or network
* Unauthorized monitoring of data or traffic on any network or system without the express authorization of the owner of the system or network
* Interference with service to any user, host or network including, without limitation, mailbombing, flooding, deliberate attempts to overload a system and broadcast attacks
* Falsifying your user identity or providing other false information to PLUM CANARY or to other users of PCSS in connection with your use of PCSS or any feature of PCSS
* Posting viruses or software designed to create a virus or to do harm to PCSS, any PCSS members or users of PCSS, or any network
* Taking any other action to disrupt the normal use of PCSS or the Internet by other users
* Unsolicited E-Mail ("Spamming" and "Mailbombing")
This Agreement prohibits abuse of PCSS's data synchronization and related functionalities. Some specific examples of prohibited actions are as follows:
* Sending unsolicited bulk task assignments or other PCSS communication, including, without limitation, bulk commercial advertising and informational announcements ("bulk" means sending the same or substantially similar messages to more than 25 PCSS users in a single day); PLUM CANARY reserves the right to block unsolicited commercial e-mail if a PCSS user objects to receiving such messages, even if it is not considered "bulk"
* Using information collected from any PCSS user or PCSS user directory or any other area of PCSS for the purpose of sending unsolicited communications via the PCSS system, whether or not it qualifies as "bulk"
* Forging of any TCP-IP packet header or any part of the header information in a task assignment or other PCSS communication, or otherwise putting information in the header designed to mislead recipients as to the origin of the communication ("spoofing")
* Using another site's mail server to relay mail without the express permission of the other site
* Engaging in any of the foregoing activities by using the services of another provider, but channeling such activities through a PCSS account, remailer, or otherwise through any feature of PCSS, or using a PCSS account as a communications drop for responses, or otherwise using the services of another provider for the purpose of facilitating the foregoing activities
* Exceeding Account Limitations
PCSS has been designed primarily for your own use. PCSS is not intended to be used by businesses intending to resell PCSS services. PCSS accounts and the features and services which make up PCSS are limited in terms of the bandwidth for network traffic and disk utilization for storage allocated to them, as described in the PCSS feature pages. Exceeding any applicable limitation of bandwidth or capacity is prohibited. If there is excess usage on your account or accounts you beneficially control, PLUM CANARY reserves the right to temporarily disable access to information available from your account through a URL, or to "bounce" electronic communications intended to travel through PCSS servers back to senders. Repeated violations may result in termination of your account.
In addition to the PCSS account limitations on bandwidth and disk utilization, certain commercial or business uses are prohibited, including the following:
* Soliciting for advertisers or sponsors
* Posting sponsorships and third-party advertisements and banners
* Sending unsolicited advertising, promotional materials or commercial solicitations to third parties, including other PCSS users
* Reselling, renting or subleasing PCSS space under any circumstance
* Using or providing to any third person or entity, whether or not for a fee, any directory of or information regarding PCSS users other than for personal, non-commercial purposes
* Disseminating multi-level marketing schemes, pyramid schemes, or commercial chain letters
PLUM CANARY RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR ALL PCSS FEATURES AND CONTENT, INCLUDING BUT NOT LIMITED TO A USE OF A USER'S MAIN ACCOUNT AND ANY ACCOUNTS OF OTHERS THAT YOU PURCHASE, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT.
When PLUM CANARY becomes aware of possible violations, PLUM CANARY may initiate an investigation, which may include gathering information from any PCSS user or account involved, any third party and any complaining party.
During the investigation, PLUM CANARY may suspend or terminate any or all of a user's PCSS accounts involved and/or remove the Content involved from PLUM CANARY's system. If PLUM CANARY believes, in its sole discretion, that a violation of this Agreement has occurred, it may take responsive action, including but not limited to permanent removal of illegal or inappropriate Content from the PCSS system, warnings to the PCSS user(s), and the suspension or termination of the account or accounts responsible.
If, as a result of any such investigation, PLUM CANARY believes that any criminal activity has occurred, PLUM CANARY reserves the right to refer the matter to, and to cooperate with, any and all appropriate law enforcement authorities.
BY BECOMING a PCSS USER, YOU AGREE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TO WAIVE ANY CLAIMS YOU MAY HAVE AGAINST PLUM CANARY, AND TO HOLD PLUM CANARY HARMLESS AND INDEMNIFY PLUM CANARY WITH RESPECT TO ANY CLAIMS, RELATING TO ANY ACTION TAKEN BY PLUM CANARY AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE PLUM CANARY OR RECOVER ANY DAMAGES WHATSOEVER FROM PLUM CANARY AS A RESULT OF ITS DECISION TO REMOVE MATERIAL FROM THE PCSS SYSTEM, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR PCSS SUBSCRIPTION, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF PLUM CANARY'S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
18. AUTHORIZATION TO REMOVE CONTENT
PLUM CANARY reserves the right to disable your access to PCSS and to remove any Content you may have stored on PCSS (including, but not limited to, tasks and their associated details, Projects, and project teams) under the following circumstances:
* At the end of any trial period, if you do not elect to become a paid PCSS user.
* Upon expiration of your subscription period, if you do not renew, or upon cancellation of your subscription.
* If your credit card is declined upon renewal of your subscription or when you elect to become a user after a trial period, or if your card issuer (or its agent or affiliate) seeks return of payments previously made to PLUM CANARY.
PLUM CANARY will notify you via email to the email address listed in your PCSS profile that your access to PCSS will be deactivated and that any Content residing in your account at the time of deactivation will be deleted.
19. FOR NON-U.S. PCSS USERS
THE PCSS SERVICE IS PROVIDED BY PLUM CANARY CORPORATION., A DELAWARE CORPORATION, AND IT IS BASED IN, THE UNITED STATES. THE PERSONAL INFORMATION WHICH YOU GIVE PLUM CANARY WILL BE USED TO ESTABLISH YOUR ACCOUNT (WHETHER A TRIAL ACCOUNT OR OTHERWISE) WILL BE TRANSFERRED TO AND MAINTAINED IN PCSS RECORDS IN THE UNITED STATES. IF YOU DO NOT CONSENT TO THIS TRANSFER, DO NOT ACCEPT THE TERMS AND CONDITIONS FOR THE PCSS SERVICE.
Provisions common to both EULA and PCSS--------
The following sections of this agreement apply to both the Chirp End User License Agreement and the PLUM CANARY Sync Service Agreement sections above.
IMPORTANT: IF YOU CHOOSE TO ACCEPT THIS AGREEMENT, YOU MUST DO SO AS IT IS PRESENTED TO YOU. NO CHANGES (ADDITIONS OR DELETIONS) WILL BE ACCEPTED BY PLUM CANARY.
20. CHANGES TO AGREEMENT. PLUM CANARY Corporation ("PLUM CANARY") may change, add or remove any part of this Agreement, or any part of the PCSS services and features, including price, at any time. If it does so, PLUM CANARY will post such changes on the PLUM CANARY website.
21. DISCLAIMER OF WARRANTIES; LIABILITY LIMITATIONS
The SOFTWARE PRODUCT AND THE PCSS SERVICES ARE BEING DELIVERED TO YOU "AS IS" and PLUM CANARY MAKES NO WARRANTY AS TO THEIR USE OR PERFORMANCE. PLUM CANARY AND ITS SUPPLIERS DO NOT AND CANNOT WARRANTY THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE PRODUCT OR THE PCSS SERVICE. ANY USE OF THE SOFTWARE PRODUCT AND THE PCSS SERVICE IS AT YOUR OWN RISK. THE ENTIRE LIABILITY OF PLUM CANARY AND YOUR EXCLUSIVE REMEDY UNDER THIS EULA IS, AT THE OPTION OF PLUM CANARY, CORRECTING OR WORKING AROUND ERRORS, OR REFUNDING THE PURCHASE PRICE OF EITHER THE SOFTWARE PRODUCT, THE PCSS SERVICE, OR BOTH. IN NO EVENT SHALL PLUM CANARY'S ENTIRE LIABILITY UNDER THIS EULA EXCEED THE PURCHASE PRICE OF THE SOFTWARE PRODUCT OR CUMULATIVE PRICE PAID FOR THE PCSS SERVICE, AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF ANY SERVICES PROVIDED BY PCSS SHALL BE CANCELLATION OF YOUR ACCOUNT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PLUM CANARY AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO NONINFRINGEMENT OF THIRD PARTY RIGHTS AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PLUM CANARY OR ITS SUPPLIERS OR CONTRIBUTORS TO OPEN SOURCE COMPONENT SOFTWARE INCORPORATED IN THE SOFTWARE PRODUCT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF SAVINGS, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, OR FOR PROVISION OF OR FAILURE TO PROVIDE THE PCSS SERVICE, OR SUPPORT SERVICES, EVEN IF PLUM CANARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Because some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
PLUM CANARY DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH PCSS WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS.
PLUM CANARY may give notice to any PCSS user by sending an e-mail message to the email address listed in the user's PCSS profile, or by sending a letter via postal mail to the contact address listed in the user's PCSS registration. PCSS users may contact PLUM CANARY by filling out the "Comments and Ideas" form in the "Submitting comments and ideas" section of the PCSS Help system.
23. U.S. EXPORT CONTROLS
You agree to abide by U.S. and other applicable export control laws and not to transfer from the U.S., by electronic transmission or otherwise, any Content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to your PCSS account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this Agreement.
24. LEGAL PRINCIPLES
This Agreement represents your entire agreement with PLUM CANARY with respect to PCSS. You agree that this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than you, as a PCSS user, and PLUM CANARY.
If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Except as required by applicable non-U.S. local or national law, the laws of the Commonwealth of Massachusetts, United States of America, excluding its conflicts of law rules, govern this agreement and your use of PCSS. Your conduct and use of PCSS may be subject to other local, state, national (U.S. and non-U.S.), and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with PLUM CANARY regarding PCSS or relating in any way to your account or your use of PCSS resides in the courts of the Commonwealth of Massachusetts. You further agree and expressly consent to the exercise of personal jurisdiction in the Massachusetts courts in connection with any such dispute, including any claim involving PLUM CANARY or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers with respect to PCSS.
COMBINED Agreement Revised 20 January 2006
Agreement number 20050531-2