Netscape Software End User License Agreement
FOR NETSCAPE VERSION 9.0.0.5
Redistribution or Rental Not Permitted
READ THIS AGREEMENT CAREFULLY. WE ARE WILLING TO ALLOW YOU USE OUR SOFTWARE ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT.
BY CLICKING TO INSTALL OR BY USING OUR SOFTWARE, YOU ARE AGREEING ELECTRONICALLY TO THE TERMS OF THIS END USER LICENSE AGREEMENT (THE "AGREEMENT" or LICENSE). IF YOU DO NOT AGREE TO THIS LICENSE, CLICK CANCEL AND DO NOT INSTALL, COPY OR USE THE SOFTWARE.
In this Agreement, the term you or your means you as an individual or such entity on whose behalf you act, if any.
1. SOFTWARE. This Agreement applies to the software and any updates, upgrades or patches (the Software) provided by Netscape Communications Corporation and its affiliates and suppliers (we or us). We may discontinue or change any feature of the Software at any time and without notice.
2. THIRD PARTY OFFERINGS. Third parties may from time to time offer applications or services to access, plug-into or interact with the Software. Your use of such third-party applications will be at your own risk and subject to the terms and conditions of those third parties. Netscape makes no representations or warranties with respect to such third party applications. You agree that Netscape is under no obligation to provide you with any error corrections, updates, upgrades, fixes and/or enhancements to make the Software accessible through or compatible with these third party applications.
3. LICENSE. Provided that you comply with the terms of this Agreement, we grant you a personal, limited, non-exclusive and non-transferable license to install and use the Software on a single computer for personal and internal business purposes. This license does not entitle you to receive from us hard-copy documentation, support, telephone assistance, or enhancements or updates to the Software.
4. PROPRIETARY RIGHTS. This is a license of the Software and not a sale. Portions of the Product are available in source code form under the terms of the Mozilla Public License and other open source licenses (collectively, "Open Source Licenses") at http://www.mozilla.org. Nothing in this Agreement will be construed to limit any rights granted under the Open Source Licenses. Subject to the foregoing, we, for ourselves and on behalf of our licensors, hereby reserves all intellectual property rights in the Software, except for the rights expressly granted in this Agreement. You may not remove or alter any trademark, logo, copyright or other proprietary notice in or on the Software. This license does not grant you any right to use the trademarks, service marks or logos of Netscape, AOL, Mozilla or its licensors.
5. RESTRICTIONS. You may not: (i) make any copies of the Software other than an archival copy, (ii) modify or create any derivative works of the Software or documentation; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, underlying ideas, or algorithms of the Software, or in any way ascertain, decipher, or obtain the communications protocols for accessing our services or network; (iv) copy, reproduce, reuse in another product or service, modify, alter, or display in any manner any Javascript or HTML files, or parts thereof, included in the Software; (v) use the Software to develop software or services that access the address space of the Software or that intercept the proxy; (vi) attempt to gain unauthorized access to any of our services, accounts, computer systems or networks associated with the Software; (vii) rent, lend, lease, sublicense or otherwise transfer rights to the Software; (viii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (ix) block, disable, or otherwise effect any advertising, advertisement banner window, tabs, links to other sites and services, or other features that constitute an integral part of the Software; (x) use the Software in any way that violates this Agreement or any law; (xi) use the Software in any way that violates the rights of any third party; (xii) use the Software in any way to transmit, directly or indirectly, any unsolicited bulk communications (such e-mails, voice, photos, video, chat or SPIM instant messages); or (xiii) authorize or assist any third party to do any of the things described in this paragraph.
6. CONTENT. Content that may be accessed through the use of the Software, including any links to certain web sites and RSS fees offered with the Software, is the property of its respective owner. This Agreement does not give you a license to use such content. We make no representations or warranties regarding the accuracy or reliability of the information included in such content. Use of any websites or services reached through the Software is subject to the terms of use presented on such website or service. Any Internet-based services we provide for use with the Software are subject to separate terms and conditions. You must abide by those terms if you use our services through the Software. The content on the linked sites is provided to you for your personal, non-commercial use as a convenience to you.
7. REGISTRATION. We and our affiliates, such as AOL LLC, provide interactive online services for use with the Software, such as, instant messaging, e-mail and voice services. In order to access these services, you may be required to register with us or our affiliates and have a valid log-in credential (collectively, Screen Name). Your registration for a Screen Name and your use of our online services are subject to separate terms and conditions, which you agree you will abide by when you access our services through the Software.
8. SUGGESTIONS. You agree that we may, without limitation and for no compensation, use in any manner all comments, suggestions, complaints and other feedback you provide relating to the Software.
9. YOUR REPRESENTATIONS. You represent and warrant that you have adequate legal capacity to enter into this Agreement, that you will use the Software only for lawful purposes and that you will not violate the terms of this Agreement.
10. AUTOMATED UPDATES. We may deliver to your computer automated updates, upgrades, modifications, and/or patches to address issues such as security, interoperability, and performance (collectively Updates). You may be given the opportunity to choose whether you want all Updates delivered automatically or you would prefer to be notified when a new Update is ready to be installed. Your use of the Updates will be governed by this Agreement unless you are asked to agree to new or additional terms and conditions at the time of download or installation.
11. PERFORMANCE AND TECHNICAL INFORMATION. Most of the Software is configured to report back information automatically relating to computer errors arising in connection with use of the Software, without notice to you. Information on your Software configuration settings may be included. This data is sent to us to help diagnose performance issues with, and improve, the Software.
12. DIGITAL CERTIFICATES. Some of the Software supports certain cryptographic and authentication features, including but not limited to Secure Sockets Layer and S/MIME communications, that may require the installation and/or use of a digital certificate. Digital certificates are issued, validated, and revoked by third-party certification authorities ("CAs"). We have no control over the certification process of any CA. You are solely responsible for familiarizing yourself with the terms and conditions established by a CA for the use of, or reliance upon, its digital certificates, including but not limited to any obligation to validate a digital certificate, maintain the security of a cryptographic key or password, or pay fees for certification services. YOU ARE SOLELY RESPONSIBLE FOR ANY DECISION TO USE OR RELY UPON A DIGITAL CERTIFICATE. WE ARE NOT RESPONSIBLE FOR THE VALIDITY OR ACCURACY OF ANY DIGITAL CERTIFICATE, OR FOR THE SECURITY OR INTEGRITY OF ANY TRANSACTION OR COMMUNICATION AUTHENTICATED BY A DIGITAL CERTIFICATE.
13. TERMINATION. This agreement automatically terminates if you fail to comply with the terms hereof or if you attempt to assign the agreement or transfer the software to a third party except as expressly permitted in this agreement. Upon termination, you must stop all use of the software and must destroy all copies of the Software that are in your possession. All provisions of this Agreement, except for the license grant in Section 3 above, survive the termination of this Agreement.
14. INJUNCTIVE RELIEF. You agree that your breach or threatened breach of this Agreement will cause us irreparable damage for which recovery of money damages would be inadequate and that we, therefore, may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
15. DISCLAIMER OF WARRANTY.
WE LICENSE THE SOFTWARE AS IS AND WITH ALL FAULTS. WE DO NOT WARRANT THAT THIS SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND COST OF ANY SERVICE AND REPAIR IS WITH YOU.
WE AND OUR SUPPLIERS DISCLAIM ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, NON-INFRINGEMENT OR ACCURACY, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN AOL AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. AOL AND ITS LICENSORS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE SOFTWARE.
IF ANY IMPLIED WARRANTY MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN SUCH IMPLIED WARRANTY IS LIMITED TO 30 DAYS FROM THE DATE YOU ACQUIRED THE SOFTWARE FROM US OR OUR AUTHORIZED DISTRIBUTOR.
16. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AOL OR ITS PARENT, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "NETSCAPE GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE NETSCAPE GROUP'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR SOFTWARE PRODUCT, AS DETERMINED AT OUR SOLE DISCRETION, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. THE NETSCAPE GROUP IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
17. NO SUPPORT OR UPGRADE OBLIGATIONS. We are not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the Software.
18. IMPORT/EXPORT CONTROL. The Software is subject to export and import laws, regulations, rules and orders of the United States and foreign nations. You must comply with these laws that apply to the Software. You may not directly or indirectly export, re-export, transfer, or release the Software, any other commodities, software or technology received from us, or any direct product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government.
19. HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not designed, manufactured or intended for use in environments in which its failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, THE NETSCAPE GROUP SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE NETSCAPE GROUP WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE SOFTWARE IN SUCH APPLICATIONS.
20. U.S. GOVERNMENT END-USERS. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b) (2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Software with only those rights as described in this License.
21. ELECTRONIC NOTICES.
YOU AGREE TO THIS LICENSE ELECTRONICALLY. YOU AUTHORIZE US TO PROVIE YOU ANY INFORMATION AND NOTICES REGARDING THE SOFTWARE (NOTICES) IN ELECTRONIC FORM. WE MAY PROVIDE NOTICES TO YOU (1) VIA E-MAIL IF YOU HAVE PROVIDED US WITH A VALID EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEBSITE DESIGNATED BY US FOR THIS PURPOSE. The delivery of any Notice is effective when sent or posted by us, regardless of whether you read the Notice or actually receive the delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the Software. As long as you are able to access the Internet using the Software, you will be able to receive electronic notices from us.
22. INDEMNIFICATION. Upon a request by us, you agree to defend, indemnify, and hold harmless us and our parent and other affiliated companies, and our respective employees, contractors, officers, directors, and agents from all liabilities, claims, and expenses, including attorney's fees that arise from your use or misuse of the Software. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
23. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES. You agree that the laws of the Commonwealth of Virginia govern this contract and any claim or dispute that you may have against us, without regard to Virginias conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us will be resolved by a court located in the Commonwealth of Virginia and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
PLEASE NOTE THAT BY AGREEING TO THESE TERMS OF USE, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE COMMONWEALTH OF VIRGINIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE COMMONWEALTH OF VIRGINIA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.
24. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between you and us concerning the subject matter of this Agreement, which may only be modified by us.
25. GENERAL TERMS. (a) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (b) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or we may at our option terminate this Agreement. (c) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (d) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (e) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. We may assign this Agreement to any entity at its sole discretion and without notice to you. (f) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (g) Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
26. USER OUTSIDE THE U.S. If you are using the Software outside the U.S., then the provisions of this Section shall apply: (i) Les parties aux prsents confirment leur volont que cette convention de mme que tous les documents y compris tout avis qui s'y rattach, soient redigs en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable; and (iii) if the laws applicable to your use of the Software would prohibit the enforceability of this Agreement, or impose any additional burdens on AOL, or confer any rights to you that are materially different from the terms and conditions of this Agreement, then you are not authorized to use the Software and you agree to remove it from your computer.