IMPORTANT-READ CAREFULLY: This End-User License Agreement ("Agreement") is a legal contract between you (either an individual or a single business entity) and MediaCell. for the MediaCell product(s), which includes computer software and, as applicable, associated media, printed materials, and "online" or electronic documentation (the "Program").
BY CLICKING THE [ENTER] OR [ACCEPTED] ICON BELOW, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE PROGRAM, AND EXIT NOW.
1. Definitions:
a. "we" ôourö, or "us" means MediaCell Inc,., and its licensors and suppliers; and
b. "you" means the end user of the Program.
2. License Terms. Following acceptance of this Agreement, you may install and use one (1) copy of the Program for your own personal, individual use. You may install the single copy on one hard disk or other storage device for one computer, and you may access and use the Program at that location so long as only one copy of the Program is in operation. You may make copies of the Program software necessary for normal backup purposes. You agree not to make any other copies of the software, the manual(s), or any part of them, or sell or give any copies to others, without our advance written permission. You may only use the Program for fifteen days from the date you accept this Agreement, unless you register the Program. Registration occurs via an online verification process. This license is not assignable.
3. Ownership. All title and copyrights in and to the Program (including, without limitation, any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software Application), the accompanying media and printed materials, and any copies of the Program are owned by MediaCell Inc,. or its suppliers and licensors. The Program is protected by copyright laws and international treaty provisions. Therefore, you must treat the Program like any other copyrighted material, subject to the provisions of this Agreement. You may not rent, lease or lend the Program. You agree that you will not reverse engineer, decompile, or disassemble the Program for any purpose whatsoever. The Program is subject to license management and digital rights management devices, incorporated by us or our licensors, and you agree that your use of the Program is subject to your compliance with such devices.
4. Operation of the Program. You assume full responsibility for the selection and use of the Program to achieve your intended results and full responsibility for verification of all results.
5. THIS SOFTWARE AND THE ACCOMPANYING FILES ARE PROVIDED "AS IS." MediaCell Inc,. AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR SUCH FILES. MediaCell Inc, INC. AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO TITLE OR INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
6. IN NO EVENT SHALL WE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF USE OF THE PROGRAM OR YOUR RELATIONSHIP WITH US, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; THEREFORE, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL, CUMULATIVE LIABILITY UNDER ANY AND ALL THEORIES OF LIABILITY AND CAUSES OF ACTION EXCEED THE PURCHASE PRICE PAID FOR THE PROGRAM LICENSE.
7. EXPORT CONTROLS. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Programs or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals.
8. MISCELLANEOUS. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, representations, and agreements. This Agreement may be modified only by a written agreement signed by the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be construed under the laws of the State of Massachusetts, USA, excluding rules regarding conflicts of law, and the State of Massachusetts shall be the sole and exclusive venue over disputes relating to this Agreement or your use of the Program. This license is written in English and English is its controlling language.
9. U.S. GOVERNMENT END USERS. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 C.F.R. 52.227-19, as applicable. Licensor is MediaCell Inc,.
EBATES TERMS & CONDITIONS
IMPORTANT
Please read this Member Agreement (the "Agreement") carefully before enrolling as a member of the Ebates Shopping Discount Program (the "Program") or downloading the Moe Money MakerÖ, a product of TopMoxie. This Agreement explains the terms and conditions governing membership in the Program (the "Program Terms and Conditions"), and it is your responsibility to read and understand them. By enrolling as a member in the Program (a "Member"), or by downloading, installing and/or utilizing the Moe Money MakerÖ, you agree to be bound by the Program Terms and Conditions. Enrollment is defined as providing Ebates with your valid email address and a password in which to access your account. Downloading, installing, and/or utilizing the Moe Money Maker does not confer the status of "Member" until the Moe Money MakerÖ user completes the Enrollment process. By agreeing to Ebates' terms and conditions, you also agree to the terms and conditions of Ebates' Moe Money MakerÖ software provider TopMoxie. For TopMoxie's complete terms and conditions, click here <http://www.topmoxie.com/eula.htm>. Participation in the Program and its benefits are offered at the discretion of Ebates, and Ebates has the right to change the Program Terms and Conditions, in whole or in part, at any time with or without notice.
ELIGIBILITY
1. You must be an individual, 18 years of age or older.
2. Members must be human: no machines, scripts, or automated services may be used to accumulate any financial benefits derived from the use of Ebates. You may maintain only one account. Any duplicate accounts will be subject to cancellation.
3. The Program is only available via access to the Ebates Web site (http://www.ebates.com). You must have Internet access and an email address to be eligible to receive the privileges and benefits of membership. Ebates is not responsible for your inability to connect to the Internet, log into the Ebates Web site, or access your Ebates account.
4. By agreeing to these terms, you also agree not to 'spam' unknown individuals by sending them unwanted emails to solicit their membership at Ebates. Refusal to abide by this or any other rules may result in Ebates stripping you of referrals and/or canceling your membership.
ACCRUAL OF DISCOUNTS
5. Members will be credited, subject to the terms and conditions enumerated in this Agreement, a percentage of the net purchases made by you at one of the online merchants affiliated with Ebates (an "Affiliated Merchant"). The percentage will be enumerated on the Ebates Web site as it relates to each Affiliated Merchant. The net purchase is defined as the total amount paid to the merchant minus tax, gift wrapping, shipping, promotional credits, returns, cancellations, and transaction fees or as the Affiliated Merchant defines on their respective Web site and as is enumerated in their respective Affiliate Membership and/or Operating Agreement document, whichever is less. All Affiliated Merchant Membership and/or Operating Agreements as they relate to their affiliate or partner programs with Ebates and which reside on the Affiliated Merchant's respective Web sites are hereby incorporated into this Agreement by reference.
6. As a Member, purchases made through Ebates Affiliated Merchants will be deemed a "Qualified Purchase" and will be subject to earn a discount if and only if all of the following criteria are satisfied: 1) "Cookies", both first and third party (if applicable), must be enabled on your Web browser. 2) All potential Qualified Purchases must begin by clicking on the Affiliated Merchant's link that appears on the Ebates Web site and being successfully connected to the Affiliated Merchant's Web site based upon that click. Individuals who download the Moe Money Maker may on occasion be excepted from the terms of section 6(2), as their browser will in some instances link directly to the merchant through the correct link. The Moe Money Maker is only a shopping reminder service provided by Ebates; for reliability of tracking we recommend you start your shopping trip at the Ebates.com website. 3) Ebates may, at all times, route your request for a merchant site through specific links, in order to assure that the sale can be tracked correctly. Any alteration of these links will invalidate your sale, which will not be deemed a Qualified Purchase. All purchases must be started and completed in one shopping session within the Ebates shopping program. If you start a purchase, then complete it in a different session, you will be ineligible for a rebate.
7. The determination of whether or not a purchase made through an Ebates Affiliated Merchant is a "Qualified Purchase" is at the sole discretion of Ebates.
8. "Account Activation" is completed upon the making of a Qualified Purchase at any Ebates merchant site. In case of return or cancellation, Ebates retains the right to reverse account credit. Completed offers in the More Cash section of the site are not Qualified Purchases, and will not fulfill Account Activation.
9. Discounts awarded to Members are subject to adjustments for returns, cancellations, and other events. Such adjustments can be applied to Member accounts at any time by Ebates at its sole discretion. Should you disagree with any adjustments made to your account, your sole remedy is to withdraw from the Program.
10. You may be taxed on your accrual of discounts, depending on the amount of discounts you accrue and the tax laws of federal, state, and local jurisdictions. Ebates may choose to provide you with those notices to you on occasion. In all instances, you will be solely responsible for any and all tax liability arising out of your accrual or redemption of discounts.
11. The following purchases are not eligible for accrual or payment of discounts: Dell Computers: any purchase of Dell products and services in which the transaction is substantially completed by telephone or by a Dell salesperson. Priceline.com: only purchases of airline tickets and hotel reservations qualify for a discount. Prescriptions from all merchants are not eligible as well, due to Federal/State laws and regulations. Monthly Deliveries, such as Wine-of-the-month clubs and Pet foods, are not eligible for a discount unless all months are paid for up front through Ebates. Gift Certificates that are purchased at any of our merchants, with the exception of Spa Wish, are also not eligible for a discount. Referral and affiliate revenues will not include a percentage of monies placed in member discount accounts resulting from a special promotion. Most purchases that are picked up at a warehouse or a store location do not qualify for a cash discount.
12. It is your responsibility to check your account regularly to ensure that discounts have been properly credited and that your account balance is accurate. If you do not believe that a discount has been correctly credited to your accout you must wait at least 30 days but no more than 90 days after completing a Qualifying Purchase to contact Ebates Customer Care. Furthermore, all discounts earned by Members are subject to review. Necessary adjustments may be applied to Member accounts at any time by Ebates at its sole discretion. If you do not agree to adjustments made to your account, your only recourse will be to terminate your membership in the Program. Ebates reserves the right to terminate any account for abusive or fraudulent activity, or if the Member is no longer reachable at the e-mail address provided.
13. Ebates is not responsible for changes to, or discontinuance of, any Affiliated Merchant, or any Affiliated Merchant withdrawal from the Program, or for any effect on accrual of discounts caused by such changes, discontinuance, or withdrawal. Ebates is not responsible for changes to, or discontinuance of, any special offer or coupon code at an Affiliated Merchant site. It is the Member's responsibility to make sure that all specials are valid. If you choose to use coupons and specials that are not listed on the Ebates site, we cannot guarantee that you will be eligible to receive an Ebates discount on your purchases.
14. The following promotions have been terminated as of October 18, 2001: - All Yahoo promotions dated May 1 - August 31, 2001 - All eTour promotions dated May 1 - August 31, 2001 - All LifeMinders promotions dated May 1 - August 31, 2001 Any purchases made after October 18, 2001 will not apply to these promotions, and no further promotional rewards will be paid.
PAYMENT SCHEDULE
15. Money earned through the referral program will be paid along with regular discounts. Continued payments of referral monies will be made at the sole discretion of Ebates. The referral program may be ended, percentages reduced or the program modified in any way, at any point, and without notice, though all accrued referral monies will be paid in full if and when this occurs.
16. Accrued discounts will be dispersed to the Members on or around August 14th, November 15th, February 15th, or May 15th. In order for an accrued discount to be eligible for payment on the above dates, the Qualified Purchase must occur 45 days prior to the payment date (by June 30th for a August 14th payment, September 30th for an November 14th payment, December 31st for a February 15th payment, March 31st for an May 15th payment). Note that orders from Dell Home Systems (Computers), Dell Home Systems Software and Peripherals, and Dell Small Business will post to accounts immediately. However, due to the 45 day return policies of these merchants, discounts will become eligible to be paid out 75 days after purchases are posted to members' accounts. Qualified purchases from all other merchants which occur within the 45 day cutoff period will be paid on the payment date subsequent to the next payment date.
17. It is your responsibility to keep your account information current in order to facilitate the payment of your discounts. In the event that your information is not current at the time of payment, you forfeit all accrued discounts to Ebates.
ACCOUNT ACCESS AND PASSWORD
18. Upon registration for the Program, you will select a password that will allow you to access your Ebates account (via the Ebates Web site) to verify transfers, check account balances, and modify your account information.
19. You must be logged into Ebates and enter your password to access your account. You may check your account status and recent earning history at any time you are able to access the Ebates Web site.
20. Ebates is entitled to act on instructions received under your password. For security purposes, it is recommended that you memorize your password, and do not write it down. You are responsible for keeping your email address, password, account numbers, and other account information confidential. Ebates is not responsible for any credits or debits made to your account by someone else who uses your password.
DOWNLOAD AND INSTALL OF MOE MONEY MAKERTM SOFTWARE
21. In downloading and/or installing the Moe Money Maker Software, you agree to the following:
1)Ebates and its agents may pop up brief alerts when you can save money by shopping through Ebates or by using the Moe Money Maker Software. 2)Ebates may direct your traffic to the merchant of your choice. This may be done a)by presenting a choice in a pop up alert asking whether you wish to save by shopping through Ebates, thereby directing your browser through Ebates in order to ensure you earn a reward, or b)by automatically routing you through Ebates and automatically earning you a cash-back discount with no further action on your part being necessary. 3)Ebates may disable or uninstall any other product or software tool that might interfere with the operability of the Moe Money Maker Software or otherwise preempt or render inoperative the Moe Money Maker Software in a manner that might jeopardize the ability of Ebates to earn you cash back discounts or coupon savings offered by Ebates. In installing the Moe Money Maker Software, you authorize Ebates to disable, uninstall, or delete any application or software that might, in Ebates' opinion nullify its function and put you at risk of loosing the cash-back savings that Moe Money Maker Software is designed to earn you. 4)If you would like to utilize another savings tool, you can simply uninstall the Moe Money Maker Software before installing a competitive application. The Moe Money Maker Software can be easily uninstalled through the standard 'add or remove programs' control panel, or through the Moe Money Maker's preference settings.
NONTRANSFERABILITY
22. No discounts earned or granted under the Program may be assigned or transferred to any third party except as expressly permitted by Ebates in writing. The sale or barter of any such discount, other than by Ebates, is expressly prohibited. Accrued discounts do not constitute property, and are not transferable: (i) upon death; (ii) as part of a domestic relations matter; or (iii) otherwise by operation of law. Any discounts assigned, sold, or otherwise transferred in violation of the Program Rules may be confiscated or canceled. Any violator of the foregoing restriction is subject to account termination, deduction of discounts from his or her account, and/or liability for damages and litigation and transaction costs.
DISCLOSURE OF ACCOUNT INFORMATION
23. You authorize Ebates to disclose to third parties information you have provided, or information that Ebates has obtained about your Ebates account or shopping behavior: (i) to agents of Ebates or its affiliates, such as independent auditors, consultants or attorneys; (ii) to comply with government agency or court orders or requests; (iii) in providing aggregated and non-personalized marketing services for an advertising or merchant partner, or (iv) where it is necessary for redemption or transfer of your discounts. Further, you authorize Ebates to receive any account information from any Affiliate Merchant including, but not limited to information regarding the Qualified Purchase such as the products ordered, the order number, the time and date the Qualified Purchase occurred, the email address entered for the Qualified Purchase. You agree to hold the Affiliated Merchant harmless for any information disclosed to Ebates. If you choose to download the Moe Money MakerÖ, you allow Ebates to collect, use and sell non- personalized marketing information regarding your visits and purchases to internet commerce sites.
DISCLAIMER
24. THE EBATES PROGRAM AND THE MOE MONEY MAKERÖ ARE BEING PROVIDED TO MEMBER "AS IS" WITH NO WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EBATES DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
25. EBATES DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE QUALITY OF, OR ACCURACY OF ADVERTISEMENTS FOR, ANY MERCHANDISE, PRODUCTS, OR SERVICES OFFERED OR PROVIDED BY AFFILIATED MERCHANTS OR SUPPLIERS IN CONJUNCTION WITH THE PROGRAM. IN ADDITION, ALTHOUGH EBATES INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE EBATES WEB SITE, EBATES DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS THAT THIS SITE IS FREE OF DESTRUCTIVE MATERIALS. IN ADDITION, EBATES DOES NOT WARRANT THAT ACCESS TO THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND EBATES ASSUMES NO RESPONSIBILITY FOR ANY DAMAGE CAUSED BY YOUR ACCESS, OR INABILITY TO ACCESS, THIS SITE., INCLUDING, BUT NOT LIMITED TO, YOUR INABILITY TO ACCRUE DISCOUNTS BY PURCHASING ITEMS WITH AN AFFILIATED MERCHANT.
LIMITATION OF LIABILITY
26. IN NO EVENT WILL ANY OTHER COMPANY WITH WHICH EBATES HAS A CORPORATE PARTNERING RELATIONSHIP, INCLUDING WITHOUT LIMITATION, CO-BRANDING, CO-MARKETING, JOINT DEVELOPMENT, A MERCHANT RELATIONSHIP, OR A SUPPLIER RELATIONSHIP (EACH A "CORPORATE PARTICIPANT") BE LIABLE TO YOU FOR NON-PERFORMANCE OF EBATES OBLIGATIONS. YOU AGREE NOT TO SUE ANY CORPORATE PARTICIPANT FOR NON-PERFORMANCE BY EBATES. IN NO EVENT SHALL EBATES BE LIABLE FOR ANY DAMAGES, CLAIMS OR LOSSES INCURRED (INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY ARISING IN CONNECTION WITH: (I) THE PROGRAM; (II) ANY FAILURE, DELAY, OR DECISION BY EBATES IN ADMINISTERING THE PROGRAM; (III) THE USE OR INABILITY TO USE THIS WEB SITE; (IV) THE USE OR INABILITY TO USE THE MOE MONEY MAKERÖ SOFTWARE INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF SUCH USE OR INABILITY TO USE THE MOE MONEY MAKERÖ SOFTWARE, OR (V) THE PURCHASE OR USE OF ANY MERCHANDISE, PRODUCTS, OR SERVICES OF MERCHANTS OR SUPPLIERS, EVEN IF EBATES, OR REPRESENTATIVES THEREOF, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
27. MEMBER AGREES TO INDEMNIFY AND HOLD EBATES, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY'S FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF MEMBER'S USE OF THE PROGRAM, THE VIOLATION OF THESE POLICIES BY MEMBER, OR THE INFRINGEMENT BY MEMBER, OR OTHER USER OF THE PROGRAM USING THE MEMBER'S ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY, OR AS A RESULT OF ANY THREATENING, LIBELOUS, OBSCENE, HARASSING OR OFFENSIVE MATERIAL CONTAINED IN ANY MEMBER COMMUNICATIONS.
TERMINATION OR CHANGES OF THE PROGRAM
28. Ebates reserves the right to terminate the Program at any time with notice. This means you will have sixty (60) days from the date notice of Program termination is provided to Members to redeem discounts in your account. Notification of Program termination will be sent to the email address you provide to Ebates during the registration process. Ebates will not be responsible for failing to notify you of Program termination where such failure is caused by any reason outside the control of Ebates, including an error in your email program, an inaccurate email address, your failure to check for your email online, or your failure to inform Ebates of a change in your email address.
29. Ebates may modify this Agreement from time to time, with or without notice, and your continued participation in the Program after such modification shall be deemed to be your acceptance of any such modification. It is your responsibility to check the Member Agreement page of the Ebates Web site regularly to determine whether this Agreement has been modified. If you do not agree to any modification of this Agreement, you must immediately cease participation in the Program.
TERMINATION OF MEMBERSHIP
30. Membership in the Program is subject to the Program Terms and Conditions. Any failure to comply with the Program Terms and Conditions, any fraud or abuse relating to the accrual or redemption of discounts, or any misrepresentation of any information furnished to Ebates or its affiliates by you, or anyone acting on your behalf, may result in the termination of your membership in the Program, cancellation of your Ebates account and/or forfeiture of your accrued discounts.
DISPUTES/ERRORS
31. All questions or disputes regarding the Program, including without limitation, questions or disputes regarding eligibility for the Program, or the eligibility of discounts for accrual or redemption, must be submitted in writing within 60 days of the qualifying transaction, to Ebates at: Customer Service, Ebates Inc., 5 Thomas Mellon Circle, Suite 225, San Francisco, CA 94134, or email us at customerservice@ebates.com <mailto:customerservice@ebates.com>. Any such disputes shall be resolved by Ebates at its sole discretion. All interpretations of Program Terms and Conditions shall be at the sole discretion of Ebates. In the event that an error is made by Ebates, your sole remedy shall be the credit of the disputed discount to your Ebates account.
MISCELLANEOUS
32. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to conflicts of law rules. As a condition of the use of the Ebates website and service, you (the Member) agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Francisco, California and therefore agree to file any grievance or suit of any kind exclusively in the courts located within the county of San Francisco. If any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible, and the other provisions contained herein will remain in full force and effect. Ebates' failure to insist upon or enforce strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right. Nothing in this Agreement shall be construed as creating or constituting a partnership, joint venture or agency relationship between Ebates and the Affiliated Merchants or between Ebates and any other of its Corporate Partners. Neither the Affiliated Merchants nor any Corporate Partner shall have the ability to create any obligation on Ebates' behalf. This Agreement constitutes the entire agreement between you and Ebates with respect to the Program.
NAVEXCEL, LTD.
END USER LICENSE AGREEMENT FOR NAVHELPER
REDISTRIBUTION NOT PERMITTED
Please read and understand this agreement fully before installing an/or using this software. This is a License Agreement for NavHelper software (the ôSoftwareö) between you and NavExcel, Ltd. (ôNavExcelö), the publisher of the Software. By clicking on the ôacceptö button, installing, copying or otherwise using the Software, you agree to be bound by the terms of this License Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, CLICK ON THE ôCANCELö BUTTON AND/OR DO NOT INSTALL THE SOFTWARE.
1. Rights Granted
This License Agreement allows you to use the Software. NavExcel grants you a nonexclusive, nontransferable, royalty-free license permitting you to download the Software solely for your personal use. The rights granted to you by NavExcel shall not be assigned, sublicensed, or otherwise conveyed or transferred by you to any other person, organization, or entity. Any rights not expressly granted to you herein are reserved by NavExcel.
2. Amendment
NavExcel may amend this License Agreement at any time without notice and any such modifications shall be deemed effective immediately upon publishing on NavExcelÆs site located at www.navexcel.com (the ôSiteö). For clarity, should any term(s) of this License Agreement differ from and term(s) of the License Agreement published as on the Site, the version of the License Agreement published on the Site shall govern.
3. Restrictions; Ownership
You shall not make or distribute copies of the Software. You may not decompile, reserve engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. You may not modify, sell, rent, transfer, resell for profit, distribute or create derivative works based upon the Software or any part thereof. You will not export or re-export, directly or indirectly, the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder. The foregoing license gives you limited rights to use the Software. You do not become the owner of the Software. NavExcel retails all title to the Software and all copies thereof. All rights not specifically granted in this License Agreement, including Federal and International copyrights, are reserved by NavExcel. You acknowledge and agree that NavExcel holds all rights to, title to, and interest in all tangible and intangible incidents of the Software, including all patents, copyrights, and trade secrets pertaining thereto, and that this License Agreement conveys to you only a limited right to access and use the Software.
4. Privacy
NavExcel does not collect or store any personally identifiable information about you via the Software nor any information about your Internet usage patterns. NavExcel will not serve any advertisements to you via a ôpop-upö windows or otherwise via the Software.
5. Automatic Updates
The Software may automatically communicate with NavExcel or a third partyÆs servers to check for an install updates to the Software such as bug fixes, new features, registry settings, and other modifications. You consent to your receipt and installation of all of the foregoing and agree that all of the foregoing shall be governed by the terms of this License Agreement.
6. Content
NavExcel may provide links to Internet sites or resources not owned or controlled by NavExcel. Because NavExcel has no control over such sites and resources, you acknowledge and agree that NavExcel is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. NavExcel shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by the use of or reliance on any such content, goods, or services available on or through any such site or resource.
7. Disclaimer of Warranties and Limitation of Liability
THE SOFTWARE, DOCUMENTATION, SERVICES AND CONTENT ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NAVEXCEL FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION, SERVICES AND CONTENT REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NAVEXCEL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, THE SERVICES OR THE CONTENT, EVEN IF NAVEXCEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Indemnification
You agree to release, indemnify, defend, and hold harmless NavExcel, its parents, shareholders, subsidiaries, affiliates, officers, directors, employees, agents, and advisors, from and against any and all losses, liabilities, claims, demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, execution and licenses, including reasonable attorneysÆ fees and costs due to or arising out of your use, installation, or download of the Software or your breach of this License Agreement.
9. General
This License Agreement shall be governed by the laws of England and Wales. This License Agreement contains the complete agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, whether written or oral. If any provision in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect. In such event, the parties shall negotiate in good faith, a substitute, valid, and enforceable provision that most nearly effect the partiesÆ intent in entering into this Agreement.
