IMPORTANT!
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING,
OR OTHERWISE USING ANY CONTENT (AS DEFINED BELOW) FROM THIS WEB SITE.
BY CLICKING ON THE “YES” OR “ACCEPT” BUTTON, OR OTHERWISE DOWNLOADING
OR ACCESSING THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS
CONTAINED HEREIN. YOU SHOULD PRINT-OUT A COPY OF THIS AGREEMENT FOR
FUTURE REFERENCE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND
CONDITIONS OF THIS AGREEMENT, YOU SHOULD CLICK THE “DO NOT ACCEPT”
OR “REJECT” BUTTON TO TERMINATE THE DOWNLOAD PROCESS. CONTENT PROVIDER
(AS DEFINED BELOW) AGREES TO LICENSE THE CONTENT TO YOU ONLY IF YOU
AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN.
I. Definitions
The following terms used in this Agreement have the meanings set forth
below:
a Content
Means all materials downloadable from this web site, including, but
not limited to all literary works, text, pictorial and graphical works,
photographs, video and audio clips, motion pictures and other audio
visual works, video games, music, soundtracks, button icons, streaming
data, animation, images, compilations, .RAM files, .AVI files, or
any other software files (in object code or source code format).
b Content Provider
Dallonica LTD,
243 28th October Avenue, Christiana Sea View Court, Block A, 202 Suites, 3035 Limassol, Cyprus
Creative Media Solutions Ltd,
P.O. Box 642 Main Street
Charlestown, Nevis, West Indies
II. License
Grants and Proprietary Rights
a License Grant
Subject to the terms and conditions of this Agreement, provided that
you are a member in good-standing to this web site or are otherwise
permitted by Content Provider to download the Content, Content Provider
hereby grants you a limited, non-transferable, non-assignable, worldwide,
non-exclusive right to use the Content solely for your own internal
non-commercial personal use. You may cache the Content onto the hard
drive of a single computer for your personal, non-commercial internal
use. The rights granted hereunder constitute a license, not a sale,
of the applicable Content.
b Restrictions on Use of Content
You agree that you will not, nor will you authorize or permit others
to: (1) reverse engineer, decompile or disassemble the software elements
of the Content or otherwise attempt to discover the source code of
the software elements of the Content; (2) sell, rent, lease, license,
sublicense, transfer, distribute, re-transmit, time-share, use or
make available on a service bureau, or otherwise assign to any third
party the Content or any of your rights to license the Content, (3)
modify the Content or create any derivative works based on the Content;
or (4) circumvent any encryption or other security tools used anywhere
in the Content, or the web site.
c Ownership
As between the parties, the Content and all patents, copyrights, trade
secrets, trademarks, service marks, know-how and any other proprietary
rights therein or thereto, is the sole and exclusive property of Content
Provider (or Content Provider’s licensors), and you gain no right,
title or interest in and to the Content by virtue of this Agreement
other than the limited licenses granted herein expressly in Section
II(a) above.
d Notices
You shall include such proprietary rights and other notices on each
copy of the Content as may be provided by Content Provider to you
from time to time, or as may be generated automatically by the Content.
You shall not remove or obscure any such notices.
e Remedy for Breach of License
In addition to all other rights and remedies available to Content
Provider at law or in equity, any violation of the licensing provisions
of this Section II by you (or any third party to whom you have provided
access to the Content) shall constitute a material breach of this
Agreement and Content Provider shall have the immediate right to terminate
this Agreement and all licenses granted hereunder, and Content Provider
may seek any and all appropriate remedies, including but not limited
to injunctive relief for patent, copyright, or trademark infringement,
misappropriation of trade secrets, breach of confidence, or any other
theory, as applicable.
III. Fees
a Fees
You agree to pay Content Provider periodic subscription fees required for you to browse of download
the Content according to the then-current billing terms. Fees may be increased by Content Provider
from time to time based on Content Provider’s then-standard fees for
the Content.
IV. No Warranties
YOU EXPRESSLY AGREE THAT YOUR USE OF THE CONTENT IS AT YOUR DISCRETION
AND AT YOUR OWN AND SOLE RISK. THE CONTENT IS PROVIDED “AS IS” WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. CONTENT PROVIDER
MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE CONTENT WILL BE UNINTERRUPTED,
TIMELY, SECURE, OR ERROR FREE; NOR DOES CONTENT PROVIDER MAKE ANY
REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY, TRUTH,
ACCURACY OR COMPLETENESS OF THE CONTENT. YOU ALSO UNDERSTAND AND AGREE
THAT YOU ARE AND WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR
COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF
THE CONTENT. CONTENT PROVIDER MAKES NO WARRANTY REGARDING ANY GOODS
OR SERVICES PURCHASED OR OBTAINED THROUGH THE CONTENT OR ANY TRANSACTION
ENTERED INTO THROUGH THE CONTENT AND IS NOT RESPONSIBLE FOR ANY USE
OF CONFIDENTIAL OR PRIVATE INFORMATION BY THIRD PARTIES. SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE
EXCLUSIONS MAY NOT APPLY TO YOU.
V. Indemnity
You agree to indemnify Content Provider against any and all claims,
liabilities, and costs, including reasonable attorneys’ fees, reasonably
incurred in the defense of any claim or suit arising out of or otherwise
related to this Agreement, including without limitation, any breach
or threatened breach by you of this Agreement. Content Provider shall
promptly notify you in writing of any such claim or suit, and cooperate
fully (at your expense) in the defense of such claim or suit. Content
Provider may participate in the defense of such claim or defense at
its own expense.
VI. Limitation
of Liability
IN NO EVENT SHALL CONTENT PROVIDER (OR ITS LICENSORS) BE LIABLE TO
YOU, OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS OR GOODWILL,
FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER
SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE,
EVEN IF CONTENT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL CONTENT PROVIDER’S TOTAL AGGREGATE LIABILITY
HEREUNDER FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY YOU FOR
USE AND ACCESS TO THE CONTENT.
VII. Term
and Termination
a Term
The term of this Agreement shall begin on the date that you first
download/install the Content and shall continue in effect until such
time as either party terminates the Agreement, with or without cause.
b Effect of Termination
Upon termination of this Agreement for any reason, (1) all licenses
granted hereunder shall terminate immediately, (2) you shall erase
and destroy all copies of the Content (including, without limitation
deleting the Content from any cached files on the hard drive of your
computer); and (3) Content Provider shall immediately cease providing
access to the Content to you.
c Survival
The parties’ rights and obligations under Sections II(b), II(c), II(e),
III, IV, V, VI, VII(b), and VIII shall survive any expiration or earlier
termination of this Agreement.
VIII. General
Terms
a Governing Law
This Agreement and all matters arising out of or otherwise relating
to this Agreement, shall be governed by the laws of the State of Florida,
excluding its conflict of law provisions. The parties agree that the
United Nations Convention on Contracts for the International Sale
of Goods is specifically excluded from application to this Agreement.
The parties hereby submit to the personal jurisdiction of the state
and federal courts of the State of Florida. Exclusive venue for any
litigation permitted under this Agreement shall be with the state
and federal courts located in Seminole County, Florida.
b Rights to Injunctive Relief
Both parties acknowledge that remedies at law may be inadequate to
provide an aggrieved party with full compensation in the event of
the other party’s breach of Section 2, and that an aggrieved party
shall therefore be entitled to seek injunctive relief in the event
of any such breach, in addition to seeking all other remedies available
at law or in equity.
c Arbitration
If there is a dispute between the parties arising out of or relating
to this Agreement, the parties shall meet and negotiate in good faith
to attempt to resolve the dispute. If the parties are unable to resolve
the dispute through direct negotiations, then, except as otherwise
provided herein, either party may submit the issue to binding arbitration
in accordance with the then-existing Commercial Arbitration Rules
of the American Arbitration Association. The arbitration shall be
conducted in Seminole County Florida, and conducted by a single arbitrator,
knowledgeable in software, the Internet and e-Commerce. The party
bringing the action shall be responsible for paying all costs for
arbitration, including the arbitrator’s fees, unless attorneys fees
may be awarded to the prevailing party as a matter of substantive
law. The arbitrator shall have no authority to award any punitive
or exemplary damages, certify a class action, add any parties, or
to vary or ignore the terms of this Agreement and shall be bound by
governing and applicable law. This Section shall not apply to any
breach (or any allegation which if true would constitute a breach)
of Section 2.
d Assignment
The rights and liabilities of the parties hereto will bind and inure
to the benefit of their respective assignees, successors, executors,
and administrators, as the case may be. Neither this Agreement nor
any rights granted hereunder may be sold, leased, assigned or otherwise
transferred, in whole or in part by you.
e Severability
If for any reason a court of competent jurisdiction or arbitrator
finds any provision of this Agreement, or any portion thereof, to
be unenforceable, that provision will be enforced to the maximum extent
permissible and the remainder of this Agreement will continue in full
force and effect.
f No Waiver
Failure by either party to enforce any provision of this Agreement
will not be deemed a waiver of future enforcement of that or any other
provision, and no waiver of one breach will constitute a waiver of
subsequent breaches of the same or of a different nature.
g Complete Agreement
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and supersedes and replaces
all prior or contemporaneous understandings or agreements, written
or oral, regarding such subject matter. No amendment to or modification
of this Agreement will be binding unless in writing and signed by
a duly authorized representative of both parties.
h Relationship Between the Parties
Content Provider is an independent contractor; nothing in this Agreement
shall be construed to create a partnership, joint venture or agency
relationship between the parties.
i Headings
Section and subsection headings of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part hereof
nor to affect the meaning thereof.
j Force Majeure
Content Provider shall not be responsible for any failure to perform
due to unforeseen circumstances or to causes beyond its reasonable
control, including but not limited to: acts of God; war, riot, embargoes,
acts of civil or military authority, or terrorism; fire, flood, earthquakes,
hurricanes, tropical storms or other natural disasters; fiber cuts;
strikes, or shortages in transportation, facilities, fuel, energy,
labor or materials; failure of the telecommunications or information
services infrastructure; hacking, SPAM, or any failure of a computer,
server or software, including Y2K errors or omissions, for so long
as such event continues to delay Content Provider’s performance.
k Export
You understand and acknowledge that the software elements of the Content
may be subject to regulation by agencies of the U.S. Government, including
the U.S. Department of Commerce, which prohibits export or diversion
of software to certain countries and third parties. You will not assist
or participate in any such diversion or other violation of applicable
U.S. laws and regulations. You warrant that you will not license or
otherwise permit anyone not approved to receive controlled commodities
under applicable U.S. laws and regulations and that you will abide
by such laws and regulations. You shall hold Content Provider harmless
and indemnify Content Provider from any breach or threatened breach
of this Section VIII(k).
l Government
Rights
The software elements of the Content have been developed at private
expense and is “commercial computer software” or “restricted computer
software” within the meaning of the FARs, the DFARs, and any other
similar regulations relating to government acquisition of computer
software. Nothing contained herein will be deemed to: (1) grant any
government agency any license or other rights greater than are mandated
by statute or regulation for commercial computer software developed
entirely at private expense, or (2) restrict any government rights
in any extensions or custom solutions provided hereunder and developed
at government expense.
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