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LICENSE.TXT
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1997-01-16
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PRONTO SOFTWARE LICENSE AGREEMENT
The Pronto Mail Software (as the same may be updated, modified or enhanced from
time to time, the "Pronto Software"), is licensed to you by CommTouch, Inc.
("CommTouch") on the following terms and conditions. By installing or using the
Pronto Software, you accept and agree to comply with this Pronto Software License
Agreement (this "Agreement"). If you do not agree to this Agreement, you are not
authorized to install or use the Pronto Software. Installation or use by you of
the Pronto Software shall be deemed to constitute your acceptance of this Agreement.
The Pronto Software is designed to provide a user with access to an advertiser-supported
service that allows registered users to send and receive emails, together with any
attachments, over the Internet. Contents of, and attachments to emails may be in the
form of images, text, graphics, audio, video, data, software and other materials
(collectively, "Materials").
1. Grant and Term of License. Subject to your compliance with the terms of
this Agreement, CommTouch grants to you a nonexclusive, nontransferable
and royalty-free right to install and use the Pronto Software in accordance
with the terms and conditions of this Agreement. The Pronto Software may
be installed only on (a) computers controlled by you, or (b) a network
server allowing only you and other persons who have agreed to the terms
and conditions of this Agreement to access the Pronto Software. This
Agreement and the license granted in it shall continue until CommTouch
notifies you of its termination, and will terminate automatically if you
fail to comply with this Agreement. The Pronto Software is owned by
CommTouch or its licensors, and is protected by United States copyright
laws and international treaty provisions. You agree not to modify,
translate, reverse engineer, decompile, disassemble or create derivative
works based on the Pronto Software, or remove any proprietary notices or
labels it contains. All applicable rights to patents, copyrights,
trademarks and trade secrets in the Pronto Software or any modifications
to it shall be and remain in CommTouch or its licensors. You may reproduce
the Pronto Software and give such copies (free of charge) to persons so
that they can install and use the Pronto Software on their computer as long
as a copy of this Agreement is also copied and provided to such persons
together with the Pronto Software.
2. Registration. The primary registrant (the "Postmaster") of the Pronto
Software must be an adult. If you are the Postmaster, you represent to
CommTouch and its licensees that you are 18 years old or older. The
Postmaster may create additional sub-accounts ("Sub-Accounts") for use
by the Postmaster or third parties (each such third party, a "Secondary
User"). The Postmaster and each Secondary User must read and agree to
comply with this Agreement. NOTICE TO SECONDARY USERS: In creating
each Sub-Account, the Postmaster must assign a security status to such
Sub-Account. If the Postmaster assigns a "monitored" security status to
a Sub-Account, copies of ALL incoming and outgoing emails from such
Sub-Account will be sent to a folder that the Postmaster can access.
Even if "monitored" security status is not used, or if the sub-account is
protected by password, it is possible to defeat the security function,
so do not rely on the security function to maintain the confidentiality
of emails from other users on your account.
3. Hardware and Internet Access. You are responsible for obtaining and
maintaining at your own expense all telephone or other communications
links, computer hardware and other equipment or facilities needed for
access to the Internet and use of the Pronto Software.
4. Usage by Minors. If you wish to ensure that a minor does not send or
receive offensive or otherwise inappropriate Materials through use of
the Pronto Software, you agree to closely monitor such minorÆs use of
the Pronto Software and to select appropriate level of user protection
for each Secondary User based upon the age of each Secondary User. If
you are unable or do not wish to monitor use by a minor and do not wish
such minor to potentially access any inappropriate Materials through
the use of the Pronto Software, you agree not to allow such minor to
register as a Secondary User or to otherwise use or have access to the
Pronto Software.
5. Compliance with Law. You agree to use the Pronto Software only as
permitted under applicable law. You agree not to use the Pronto
Software to conduct any business or engage in any activity that is
prohibited by applicable law.
6. Advertisements and Other Content. You understand that when using the
Pronto Software, COMMTOUCH WILL CAUSE ADVERTISEMENT AND
OTHER CONTENT TO BE SENT TO YOUR COMPUTER AND DISPLAYED
AS EMAIL OR AS PART OF THE USER INTERFACE BY THE PRONTO
SOFTWARE. AND YOU CONSENT TO THIS. Some advertisements may
be interactive and, by clicking on them, may take you to an
advertiserÆs Website or allow you to purchase products or services.
You acknowledge and agree that (i) CommTouch is not responsible for
the contents of any advertisements or other content and does not
warrant in any respect such content or the products or services of
such advertisers and (ii) CommTouch and its licensees shall have no
responsibility for any aspect of transaction with such advertisers,
including without limitation, the delivery, suitability, satisfaction
or return of such goods or services, and that you will hold CommTouch
and its licensees harmless in connection with its role of providing
authorization for such purchases.
7. Use of Local Memory. You acknowledge and agree that the Pronto Software,
as well as incoming and outgoing emails (including attached Materials),
software updates and advertisements that you receive through the
operation of the Pronto Software, will be stored on the hard drive or
other local memory of your computer. From time to time, your Pronto
Software will automatically be updated and will store various files on
your hard drive to improve the performance of the Pronto Software.
8. Collection and Disclosure of Information. CommTouch and its licensees
reserve the right to collect and maintain records of limited user
information, including data regarding your hardware configuration,
registration information and advertisements viewed. Without limiting the
foregoing, you hereby authorize CommTouch to disclose aggregated user
data (user profile statistics, banner clicks, number of use sessions,
user session duration, etc.), without identifying any specific users, to
third parties in connection with the marketing and operation of, and
placement of advertising on, the Pronto Mail Service. IN NO CASE WILL
COMMTOUCH RELEASE INFORMATION ABOUT SPECIFIC USERS
UNLESS ORDERED BY A COURT OF LAW.
9. Use of Materials.
a. Public Domain Materials. Materials that are in the public
domain may be freely transmitted using the Pronto Service.
CommTouch bears no responsibility for, and you agree to
assume all risks regarding, the determination of whether
any given Materials are in the public domain.
b. Copyrighted Materials. Unless permitted by the copyright
holder or otherwise as permitted under applicable law, you
agree not to distribute or modify copyrighted Materials
using the Pronto Software. You hereby agree to indemnify
and hold CommTouch harmless from and against any and all
costs, expenses and liabilities incurred by CommTouch
arising in connection with any claim that copyrighted
Materials included in any of your emails were violated or
infringed as a result of your transmission of such emails
or any use of such Materials by you, the recipients of such
emails or any person receiving such copyrighted Materials,
directly or indirectly, from such recipients.
c. License for Transmission. You acknowledge and agree that any
copyrighted Materials that are included as part of any email
you send will be automatically reproduced by CommTouch, its
licensees and third parties as such email is sent from computer
to computer to its intended destination and such email may be
temporarily stored or "cached" by various computers during such
process. You hereby grant CommTouch, its licensees and other
third parties whose equipment may be used to transmit, deliver
and store any such email a limited non-exclusive, worldwide,
royalty free and irrevocable license to reproduce the copyrighted
Materials contained in each such email for such transmission
and storage purposes.
12. Delay or Loss; Reader Incompatibilities. Transmission and reception of
emails over the Internet is subject to delays, which can be of substantial
duration. In addition, a failure of routers or servers can result in
the loss of emails. Although the Pronto Software is compatible with
most other email programs, due to differences in email readers, emails
that are sent by or to you may not be readable by you or the recipient
if the other party is not using the Pronto Software. Accordingly,
CommTouch makes no warranties whatsoever that emails sent by or to you
will be received, or if received will be intact or readable. YOU
AGREE THAT COMMTOUCH WILL NOT BE LIABLE UNDER ANY
CIRCUMSTANCES FOR ANY LOSS OR DELAY OF ANY E-MAILS,
OR ANY PORTION THEREOF, SENT BY, OR ADDRESSED TO, YOU.
13. PRIVACY NOTICE: Due to the inherent structure of the Internet, an email
is likely to be routed through numerous different computers before
reaching its intended destination. As a result, it is possible for
persons other than the intended recipient to intercept such email and,
unless the email has been encrypted by the sender, to read the contents
of the email. Even if an email has been encrypted by the sender, no
encryption product is completely secure. Further, due to severe
U.S. Government restrictions on the use and exportation of all encryption
products that are generally available for use within the U.S., the
encryption technology that is included in the Pronto Mail Service is of
limited effectiveness and is not the most secure encryption technology
that exists. Accordingly, if you have any information or data that is
of a confidential or proprietary nature, do not send such information
or data by email, whether or not encrypted. CommTouch and its licensees
will not be liable under any circumstances for the interception of such
information or data by a person other than the intended recipient.
14. NO WARRANTIES; LIMITATION OF LIABILITY. You expressly acknowledge
and agree that use of the Pronto Software is AT YOUR OWN RISK and
that the Pronto Software is provided "AS IS" without any warranties or
conditions whatsoever. COMMTOUCH, AND ITS AFFILIATES,
AGENTS, LICENSEES AND LICENSORS: (i) HEREBY DISCLAIM
ANY EXPRESS OR IMPLIED WARRANTIES AS TO THE COMPLETENESS,
NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE OF THE PRONTO SOFTWARE OR THAT
THE OPERATION OF THE PRONTO SOFTWARE WILL BE
UNINTERRUPTED OR ERROR-FREE; (ii) SHALL IN NO EVENT
BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INACCURACY,
ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED
IN WHOLE OR PART BY, OR FAILURES, DELAYS OR INTERRUPTIONS
OF THE PRONTO SOFTWARE; (iii) SHALL IN NO EVENT BE LIABLE
TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL
OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST
PROFITS OR LOSSES ARISING OUT OF OR RELATING TO THE USE
OR INABILITY TO USE THE PRONTO SOFTWARE, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. The Pronto
Software is not specifically developed or licensed for use in any nuclear,
aviation, mass transit, life support, medical or any other inherently
dangerous applications.
15. U.S. Government Rights. If you are acquiring the Pronto Software
(including the related documentation) on behalf of any part of the United
States Government, the following provisions apply. The Pronto Software
is deemed to be "commercial software" and "commercial computer software
documentation," respectively, pursuant to DFAR Section 227.7202 and
FAR 12.212, as applicable. Any use, modification, reproduction, release,
performance, display or disclosure of the Pronto Software (including the
related documentation) by the U.S. Government or any of its agencies
shall be governed solely by the terms of this Agreement and shall be
prohibited except to the extent expressly permitted by the terms of this
Agreement.
16. Changed Terms. CommTouch shall have the right at any time to change the
terms of this Agreement or require new terms and to change, impose
conditions on or discontinue any aspect or feature of the Pronto Software.
Such changes shall be effective immediately upon notification by any means
which give you actual knowledge of them and any use by you of the Pronto
Software after such notice shall be deemed acceptance of such changes by
you.
17. Termination. CommTouch may terminate this Agreement at any time,
without cause and at CommTouchÆs sole discretion, upon notification
to you. Upon any termination of this Agreement, or upon any transfer
of the computers on which the Pronto Software is installed, you agree
to uninstall all copies of the Pronto Software and any related files
(other than data files solely containing sent or received emails).
Upon termination of the primary account, all Sub-Accounts for such
account shall also thereupon terminate.
18. General. This Agreement will be governed by the laws of the State of
California, without reference to conflict of laws principles. This
Agreement is the entire agreement between CommTouch and you and
supersedes any other communications or advertising with respect to
the Pronto Software. If any provision of this Agreement is held
unenforceable, that provision shall be enforced to the maximum extent
permissible so as to give effect the intent of the parties, and the
remainder of this Agreement shall continue in full force and effect.
The headings used in this Agreement are for convenience only, and shall
not be given any legal import. Any item or service furnished by
CommTouch or its affiliates, agents, licensees and licensors in
furtherance of this Agreement, although not specifically identified
in it, shall nevertheless be covered by this Agreement unless
specifically covered by some other written or electronic agreement
accepted by you and an authorized representative of CommTouch or such
other party as the case may be. You agree to comply with all U.S.,
foreign and local laws and regulations which apply to your use of the
Pronto Software including without limitation, export control laws and
regulations.