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- EVERAD END USER LICENSE AGREEMENT
- The software you (the "User") are about to install contains a proprietary technology (the
- "EverAd Technology") owned by EverAd Inc. ("EverAd"). The EverAd Technology
- enables the software (the "Enabled Software") to display advertisements to the User
- during the User's use of such Enabled Software. Read the following License Agreement
- carefully before installing or using the EverAd Technology. The terms and conditions
- specified herein constitute an agreement between you and EverAd. The use of the
- EverAd Technology is subject to this Agreement. By installing, copying, or otherwise
- using the Enabled Software, you (the "User") agree to be bound by these terms and
- conditions. If you do not agree to these terms and conditions, you may not install, copy,
- or otherwise use the Enabled Software.
-
- EverAd reserves the right at its sole discretion to change the terms of this Agreement, and
- will notify the User of any such changes by a posting which will appear on the User's
- monitor the first time the User attempts to use the Enabled Software following any such
- change. Your use of the Enabled Software after the posting of any notice of change in
- terms shall constitute your acceptance of, and agreement to be bound by, any such
- changes.
-
- LICENSE GRANT
- EverAd hereby grants the User, and the User hereby accepts, a non-exclusive license to
- use the EverAd Technology only as authorized in this License Agreement. So long as the
- User complies with all the provisions of this Agreement, including the restrictions set
- forth below on altering, making derivatives of or modifying the EverAd Technology, the
- User may, and is encouraged to, make and distribute unlimited copies of the Enabled
- Software, as long as each copy (i) shall be a true and complete copy of the Enabled
- Software; (ii) shall not be sold or distributed for any compensation or consideration, and
- (iii) shall contain this License Agreement. This license is a license to use the machine-
- readable object code only, excluding any source code.
-
- The User is responsible for the purchase or licensing of all additional equipment and
- software necessary to install and properly operate the EverAd Technology. The Enabled
- Software is provided at no charge, or at subsidized prices, to the User because it is
- sponsored by advertisements. The User agrees to receive and watch the advertisements as
- the User uses the Enabled Software.
-
- This Agreement does not entitle the user to receive any hard-copy documentation,
- support or telephone assistance. EverAd reserves the right not to release new versions of
- the EverAd Technology or, if released, to demand fees, alter prices, features, licensing
- terms, or other characteristics of the EverAd Technology.
-
- COPYRIGHT, INTELLECTUAL PROPERTY AND RESTRICTIONS ON USE
- EverAd alone is the owner of all the intellectual property in the EverAd Technology, and
- in particular the copyright and patents. The User is being given a non-exclusive right to
- use the EverAd Technology, which shall automatically expire upon the termination of
- this Agreement or upon the expiration hereof for any reason.
-
- The EverAd Technology is patent pending. It contains copyrighted material, trade secrets
- and proprietary information owned by EverAd. This Agreement does not grant the User
- any rights to patents, copyrights, trade secrets, trade names, trade marks (whether
- registered or unregistered), domain names or any other rights, functions or licenses with
- respect to the EverAd Technology. The User further acknowledges that this license is not
- a sale or an assignment of EverAd's intellectual property rights in the EverAd
- Technology and that EverAd continues to own title to the EverAd Technology. The User
- may not de-compile, reverse engineer, disassemble or otherwise reduce the EverAd
- Technology to human readable form. The User may not modify, rent or lease the EverAd
- Technology. The User may not create derivative software based upon any trade secret,
- intellectual property or proprietary information of EverAd. The User may not sub-license,
- assign or transfer this License for consideration.
-
- The User may not adapt or use any trademark or trade name that is likely to be similar to
- or confusing with that of EverAd or SoftJ, or take any other action which infringes or
- impairs the trademark rights of EverAd.
-
- THE ADVERTISEMENTS
- The EverAd Technology enables the User to use third party software (such as the
- Enabled Software) in a proprietary format owned by EverAd at no charge, or at a
- subsidized price. While using the Enabled Software, advertisements will appear on the
- User's monitor. The advertisements disappear when the User stops using the Enabled
- Software. The User permits EverAd to automatically deliver new advertisements to the
- User's computer, when the User is connected to the Internet. The User will not receive
- any alert before or after the on-line delivery of new advertisements. The User
- acknowledges and agrees that the User will not be able to use the Enabled Software
- unless advertisements are presented on the User's monitor.
-
- By clicking the advertisements while connected to the Internet, the User may be shifted
- to a web site of the advertiser or receive any other messages, information or offers from
- the advertiser. The user acknowledges and agrees that EverAd is not responsible for the
- privacy practices of the advertiser, or the content of its web site, information, messages or
- offers. The User is fully responsible for all communications with third parties initiated
- using the EverAd Technology.
-
- PRIVACY
- In order to use the Enabled Software, and as part of the installation process of the EverAd
- Technology and the Enabled Software, the User may be required to fill a questionnaire
- containing one or more of the following: User's hobbies, age, gender, zip code, and/or
- other general details. The User acknowledges and agrees that the details furnished by the
- User will be sent to EverAd's computers when the User connects to the Internet. EverAd
- will not gather or obtain any information that identifies the User personally (such as the
- User's name or e-mail address).
-
- Once the user completes the Enabled Software's installation process, an automated
- system will allocate to the User a User Identification Code ("UID"). By using the UID,
- EverAd is able to track the User's choices and selections without identifying the User by
- name. The UID will be stored in a small encrypted text file, on the hard drive of the
- User's computer. The User acknowledges and agrees to the use of the UID and its storage
- in the User's hard drive.
-
- The User acknowledges and agrees that EverAd will monitor and collect information
- about the User's use of the Enabled Software. Such information includes (but is not
- limited to) statistics, the User's favorite genres, titles, and categories, the frequency in
- which the User utilizes the Enabled Software, the server from which the User
- downloaded the Enabled Software, the advertisements that the User is exposed to and
- clicks while using the Enabled Software, and parameters related to the User's Internet
- connection, etc. The User acknowledges and agrees that on predefined intervals, when
- the User connects to the Internet, this information will be automatically sent to EverAd's
- servers.
-
- The User's IP address is a 32-bit numeric string that serves as a (usually temporary)
- identifier for a computer using the Internet. The User acknowledges and agrees that
- EverAd will monitor and store the User's IP address.
-
- The User acknowledges and agrees that the information collected is EverAd's property,
- and EverAd may use it according to its privacy statement (available at
- http://www.everad.com), this End User License Agreement, and applicable laws.
-
- The User agrees that EverAd will use the information it gathers in order to provide the
- User with content and advertisements tailored to the User's interests. EverAd, or selected
- third parties that purchase information from EverAd, may use the information to offer to
- the User music, products, services, and various forms of content and to attach targeted
- advertisements to the Enabled Software. However, EverAd will not sell or transfer
- personally identifiable information about an individual User.
-
- The User acknowledges and agrees that EverAd may collect and use, for commercial
- purposes, aggregated statistical information concerning the use of the Enabled Software
- by its users (including the User). Such use may include (but is not limited to) selling,
- sharing, or transferring, aggregated statistical information to third parties. This
- information will not personally identify the User.
-
- The EverAd Technology may evolve and offer the User new options and features, such as
- electronic commerce, contests, and surveys. The new features may require EverAd to
- change its privacy policy and the User should therefore read the latest version of the
- EverAd's privacy policy at http://www.everad.com before making any use of such new
- features or options. THE USE OF ANY SUCH NEW FEATURES AND OPTIONS
- ATTESTS TO THE USER'S ACCEPTANCE OF ANY CHANGE IN THIS
- AGREEMENT, WHICH WILL BE SPECIFIED IN THE REVISED PRIVACY
- POLICY.
-
- The User acknowledges and agrees that EverAd may use "cookies" to help it understand
- usage trends, patterns of user behavior, and other information in a manner whereby the
- User always remains anonymous. Cookies may be installed on the User's browser
- whenever User clicks on an advertisement or on any other button on the Enabled
- Software that launches the User's browser. EverAd may use such cookies in conjunction
- with the User's UID to tailor advertising messages and other promotional information.
- The EverAd Technology cannot independently install, or communicate with cookies.
- Cookies may only be installed by the User's browser. Cookies are files or elements of
- data placed on a User's computer by the User's browser, while the User browses the Web.
- Once installed, EverAd may use the cookies to collect information, including but not
- limited to the website from which the User arrives at EverAd's site, the EverAd site pages
- the User visits, and/or files the User downloads from EverAd sites.
-
- If EverAd, its subsidiaries, officers, or agents become legally compelled by a qualified
- court of law to disclose any portion of the information, EverAd may disclose any
- information gathered about the User or furnished by the User. EverAd may also disclose
- such information if it will face legal liability (criminal or civil) if it does not furnish the
- information.
-
- THE USER'S UNDERTAKINGS
- The User undertakes not to use the EverAd Technology in connection with the
- performance of any illegal act or in order to use digital content that infringes the
- intellectual property rights or other rights of third parties, including copyright, trade
- marks, rights of privacy, and publicity.
-
- The User's right to use the EverAd Technology is a personal one. The User agrees not to
- resell or make any commercial use of the EverAd Technology, without EverAd's express
- prior written consent.
-
- The User acknowledges and agrees not to tamper with the EverAd Technology or
- Enabled Software in any manner, nor utilize any technical or other means that prevents or
- interferes with the presentation on User's monitor or screen of advertisements delivered
- by EverAd.
-
- The User acknowledges and agrees not to alter, make derivatives of, or modify in any
- way, the EverAd Technology.
-
- SOFTWARE VERSIONS AND PATCHES
- EverAd may, without being obliged, update or fix the EverAd Technology, add or
- remove features, and change or update any other aspects of its functionality (the
- "Update(s)"). The Updates will be made with regard to the dynamic character of the
- Internet, including the technological and commercial changes taking place therein and in
- the software industry. EverAd may (but is not obligated to) publish notices regarding the
- Updates on its web site http://www.everad.com.
-
- EverAd may, from time to time, update the EverAd Technology automatically, in order to
- maintain its compatibility with EverAd servers. Such updates will be delivered to the
- User's computer when the User is connected to the Internet. EverAd will request the User
- to accept such Updates, unless the User gave a prior consent to accept the Updates either
- during installation of the Enabled Software or during a previous session that performed
- an Update. If the User will refuse to accept an Update, the Enabled Software shall
- become fully or partially inoperable, as the case may be.
-
- The terms and conditions of this License Agreement shall apply on any such Update.
-
- THIRD-PARTY SOFTWARE
- From time to time, and at EverAd's sole discretion, EverAd may offer to provide to the
- User software developed or owned by third parties for use in connection with the EverAd
- Technology. Use of any such third-party software shall be governed by this Agreement,
- as may be modified from time to time, and by any other terms and conditions of which
- EverAd provides notice to the User in connection with the offering or providing of such
- third-party software. The User acknowledges and agrees that, in the event the User
- downloads or otherwise obtains such third-party software from EverAd, EverAd may
- share with such third party, and such third party shall be entitled to receive, such
- information as EverAd may possess relating to the User, including the User's UID and
- information contained in cookies.
-
- DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
- THE USER ACKNOWLEDGES AND AGREES THAT THE EVERAD
- TECHNOLOGY IS BEING PROVIDED FOR USE AS IS, AND THEREFORE THE
- USER SHALL NOT HAVE ANY PLEA, CLAIM OR DEMAND VIS-A-VIS EVERAD
- IN RESPECT OF THE EVERAD TECHNOLOGY'S PROPERTIES, ABILITIES,
- LIMITATIONS OR COMPATIBILITY WITH THE USER'S NEEDS. EVERAD DOES
- NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS, THAT
- THE USER WILL FIND THE ENABLED SOFTWARE TO HIS/HER LIKING. THE
- INSTALLATION AND USE OF THE EVERAD TECHNOLOGY ARE
- ACCORDINGLY BEING MADE AT THE USER'S EXCLUSIVE AND FULL
- LIABILITY, WITHOUT WARRANTIES OF MERCHANTABILITY, TITLE,
- FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,
- COMPATIBILITY, SECURITY, OR ACCURACY. ANY OTHER SOFTWARE AND
- ANY HARDWARE FURNISHED WITH OR ACCOMPANYING THE EVERAD
- TECHNOLOGY IS NOT WARRANTEED BY EVERAD.
-
- EVERAD EXPRESSLY DISCLAIMS ALL WARRANTIES FOR THE
- ADVERTISEMENTS OF PRODUCTS AND/OR SERVICES THAT THE EVERAD
- TECHNOLOGY PRESENTS. IF A USER DECIDES TO PURCHASE GOODS
- AND/OR SERVICES FOLLOWING SUCH ADVERTISEMENTS, OR BY USING
- THE APPROPRIATE FEATURE OF THE EVERAD TECHNOLOGY, THE USER
- MUST APPLY A REASONABLE DEGREE OF CARE IN THE TRANSACTION, AT
- LEAST AS THE USER WOULD DO IN A SIMILAR TRANSACTION NOT
- CONDUCTED THROUGH THE INTERNET. THE USER SHALL NOT HAVE ANY
- PLEA, CLAIM OR DEMAND VIS-A-VIS EVERAD, ITS OFFICERS, DIRECTORS,
- SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AND AGENTS, IN
- RESPECT TO THE ADVERTISEMENTS OR OTHER DIGITAL CONTENT THAT
- THE EVERAD TECHNOLOGY PRESENTS OR TO ANY GOODS AND/OR
- SERVICES THAT THE USER DECIDES TO PURCHASE FOLLOWING SUCH
- ADVERTISEMENTS. EVERAD SHALL NOT BE DEEMED THE SELLER OF ANY
- GOODS OR SERVICES ACQUIRED THROUGH THE EVERAD TECHNOLOGY OR
- FOLLOWING ITS USE. THE PURCHASE OF PRODUCTS AND/OR ENABLED
- SOFTWARE IS ACCORDINGLY BEING MADE AT THE USER'S EXCLUSIVE
- AND FULL LIABILITY.
-
- SINCE THE EVERAD TECHNOLOGY AND THE ENABLED SOFTWARE ARE
- PROVIDED TO THE USER FOR FREE OR AT SUBSIDIZED PRICES, EVERAD,
- ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-
- CONTRACTORS, AND AGENTS, SHALL NOT BE LIABLE FOR ANY DAMAGE
- (WHETHER DIRECT OR INDIRECT), LOSS, EXPENSE, OR PAYMENT,
- OCCASIONED TO THE USER IN CONSEQUENCE OF THE USE OF THE EVERAD
- TECHNOLOGY OR ENABLED SOFTWARE, THE INABILITY TO USE THE
- EVERAD TECHNOLOGY, INSTALLATION OF THE UPDATES, OR THE FAILURE
- TO DELIVER OR INSTALL THE UPDATES. THE USER WILL HAVE NO PLEA,
- CLAIM, OR DEMAND AGAINST EVERAD, ITS OFFICERS, DIRECTORS,
- SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AND AGENTS, IN
- RESPECT OF THE EVERAD TECHNOLOGY, THE ENABLED SOFTWARE, OR
- THE UPDATES.
-
- INDEMNITY
- The User shall indemnify EverAd, its officers, directors, shareholders, employees, sub-
- contractors, agents, and anyone acting on its behalf, in respect of any damage, loss, loss
- of profit, payment or expense occasioned to them (including attorney's fees and legal
- expenses) resulting from a breach of the User's obligations pursuant to this Agreement.
-
- LAW AND JURISDICTION
- The laws of the State of New York shall alone apply to this agreement.
-
- The competent courts in New York, New York shall have sole jurisdiction to hear any
- claim in connection with the EverAd Technology and in respect of any matter relating to
- the validity, applicability, performance or interpretation of this Agreement.
-
- GENERAL
- No waiver, concession, extension, representation, alteration, addition, or derogation from
- this agreement or pursuant hereto, shall be effective, unless effected in writing.
-
- The provisions of this Agreement exhaust everything agreed between the parties with
- regard to the EverAd Technology. EverAd is not liable to perform any act or provide any
- software in addition to its obligations in this Agreement.
-
- INTERPRETATION
- The paragraph headings herein are solely for the sake of convenience and shall not be
- applied in the interpretation hereof.
-
- SEVERABILITY
- If any provision of this Agreement is held by a court of competent jurisdiction to be
- illegal, invalid, unenforceable, or otherwise contrary to law, the remaining provisions of
- this Agreement shall remain in full force and effect.
-
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- Copyright (c) 2000 EverAd, Inc. SJLA 1.4.0010.18-A
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