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SOFTWARE END USER LICENSE AGREEMENT
Welcome! We are willing to allow you to use our toolbar software on the condition that you accept all of the terms of this license agreement.
BY CLICKING TO INSTALL OR BY USING OUR TOOLBAR 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 or use our software. In this License, the term “you” or “your” to mean you as an individual or such entity in whose behalf you act, if any.
1. SOFTWARE. This Agreement applies to the software, updates, plug-ins and services associated with the toolbar application (the “Software”), which is provided by AOL LLC, its suppliers and distributors (“we” or “us”). We may discontinue or change any feature of the Software at any time and without notice.
2. OWNERSHIP. This is a license of the Software and not a sale. The Software is protected by copyright and other intellectual property laws and by international treaties. We and our suppliers own all rights in the Software. Your rights to use the Software are specified in this Agreement and we retain and reserve all rights not expressly granted to you.
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. 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 networks; (iv) use the Software to develop software or services that access the address space of the Software or that intercept the proxy; (v) attempt to gain unauthorized access to any of our services or networks; (vi) rent, lend, lease, sublicense or otherwise transfer rights to the Software; (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (viii) 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; (ix) incorporate, integrate or otherwise include the Software or any portion thereof (including the communications protocols) into any software, program or product that communicates, accesses, or otherwise connects with our networks, instant messaging services or other online service; (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.
5. WEB SITES AND 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. We are not responsible for such content and we make no representations or warranties regarding the accuracy or reliability of the information included in such content. The content on the linked sites is provided to you for your personal, non-commercial use as a convenience to you. You must agree to abide by the terms and conditions that may apply to any interactive online service that you elect to use with the Software. Some of the services that we may offer for use with the Software may require that you register with us and obtain a User ID or screen name, which will be subject to separate terms and conditions.
6. SUGGESTIONS. You agree that we may use in any manner and without limitation all comments, suggestions, complaints and other feedback you provide relating to the Software.
7. 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.
8. 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. You authorize us to deliver automatically any Update if we believe it is necessary to provide for the continued functionality of the Software. 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.
9. PERFORMANCE AND USAGE INFORMATION.
(a) 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.
(b) FEATURE USAGE INFORMATION. The Software may also provide us with anonymous information about use of the Software’s features and buttons. We use this information in the aggregate to determine which Software features and buttons are most popular and useful to its users.
(c) SOFTWARE ID. The Software may contain a specific identification number for the purpose of tracking the number of unique instances of the Software in use.
(d) PERSONALIZATION. You may be asked to provide us with certain information so that we can personalize content presented to you through the Software. For example, you may be asked for your zip code, which could be used to provide you with relevant local weather and/or news reports.
10. THIRD PARTY OFFERINGS. Third parties may from time to time offer applications or services to access, “plug-into” or interact with the Software. You may only use third-party applications authorized by us for use with the Software. Your use of any third-party applications will be at your own risk and subject to the terms and conditions of those third parties. We make no representations or warranties, express or implied, regarding the third party applications. You agree that we are 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.
11. 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.
12. USE AND AVAILABILITY OF OPEN SOURCE CODE. Portions of some of the Software may have been created using source code available through various open source projects. In such cases, the licenses and availability of source code for such components are specified in a copyright notice document delivered with or linked from such Software.
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. We may take any technical remedies to prevent unsolicited bulk communications from entering, utilizing, or remaining within our computer or communications networks.
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, OUR SUPPLIERS AND DISTRIBUTORS 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 AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. WE 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 WE OR OUR PARENTS, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "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 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 IN 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 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, WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE 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 Virginia’s 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.
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 présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattaché, soient redigés 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 us, 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.
Last Updated: 7-12-2007