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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.
-