This End-User License Agreement ("EULA") is a legal agreement between you (and if you are a company or any entity other then a single person, to the extent applicable this EULA shall be binding upon your employees and affiliates as well) and any other person or entity acting on your behalf, and FileSwap Ltd. ("FileSwap") for the licensing of the FileSwap software product identified above, which includes computer software and documentation in either "online", electronic or hard copy format ("Software") under the terms and conditions of this EULA in A TIME LIMITED FREE BETA VERSION ONLY and is provided on an "AS IS" basis, for your private and personal use only.
BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF AND ARE BECOMING A PARTY TO THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, COPY, OR USE THE SOFTWARE OR ANY PART THEREOF IN ANY WAY WHAT SO EVER.
THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE IS LICENSED, NOT SOLD.
1. License.
FileSwap hereby grants you the non-exclusive, limited license to use one copy of the Software on a single computer, for your private and personal use only.
2. Proprietary Rights.
All rights and title, including all ownership rights, and intellectual property rights in and to the Software and any copies or derivative works thereof belong solely to, and shall remain with, FileSwap. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with FileSwap's ownership of, or rights in, the Software. You may not copy the printed materials, if any, accompanying the Software or the Materials (as hereinafter defined) or any part thereof. All title, ownership rights, copyright and other intellectual property rights, in the content accessed through the Software are the property of the applicable content owner and are protected by copyright law, international treaties and any other applicable law. The license granted under this EULA gives you NO RIGHTS in or to such content.
3. License Limitations.
Except as otherwise expressly permitted in this EULA, you agree not to:
3.1. modify decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Software (except to the extent applicable laws specifically prohibit such restriction); copy the Software (except for an archival copy which must be stored on media other than a computer hard drive) or documentation; or create any derivative works of Software or the Materials or any part thereof, including translation or localization;
3.2. redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer any rights in the Software to any third party;
3.3. remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels that appear in the Software;
3.4. use the database provided for use with the Software except in conjunction with the relevant Software; or
3.5. use the Software on more than one single computer.
4. By using the Software, you agree to, and acknowledge, the following:
4.1. To the effects that limitation, reduction of functionality of the Software, listings and databases, or changing of level of access or stopping access to the servers may have on your ability to use the Software, in whole or in part.
4.2. FileSwap may gather statistics and other information concerning the use of, and that was originated from the Software, as well as registration parameters provided by you, your software and configuration, provided that if published, it will be done only in aggregate form without user names;
4.3. Information provided by, or related to you may serve for the purpose of target advertising, co-registration to other services by FileSwap or other parties, provided that if names are part of this information you had been given the advanced opportunity to request that your name will be omitted;
4.4. Not to use or rely on the Software, the or any other program, information or service whatsoever related thereto, for applications and use that may result in direct damage if failed or with any information or data you do not wish to be freely accessible and generally available to Internet users.
4.5. You further agree to determine whether the information complies with your needs; to determine whether you have adequate legal rights to store, reproduce or otherwise make use of information in the manner contemplated by you; and to comply with any legal obligations, including but not limited to, obligations imposed by customary web-conduct, copyright, secrecy, defamation, decency, privacy and export laws.
4.6. FileSwap may use your name in any customer reference list or in any press release issued by FileSwap regarding the licensing of the Product.
5. Limited Warranty.
FILESWAP WARRANTS THAT THE SOFTWARE WILL OPERATE ACCORDING TO THE DOCUMENTATION AND DESCRIPTION ACCOMPANYING IT, ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESSED OR IMPLIED WARRANTIES THAT THE SOFTWARE IS FREE OF DEFECTS OR VIRUSES, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE, NON-INFRINGING OR WILL NOT CONTAIN ADULT-ORIENTED MATERIAL, OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE FREE SOFTWARE IS BORNE BY YOU. SHOULD THE FREE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, YOU AND NOT FileSwap OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE FREE SOFTWARE HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE FREE SOFTWARE SUFFICIENTLY MEETS ITS REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE FREE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
FILESWAP DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE, THE SERVICE AND THE ACCESS TO THE SERVERS, OR THE INFORMATION, LISTINGS AND DATABASES PROVIDED BY THE SOFTWARE IN TERMS OF THE ACCURACY, RELIABILITY, QUALITY, VALIDITY, STABILITY, COMPLETENESS, CURRENTNESS, OR OTHERWISE OF THEIR CONTENTS OR PRODUCTS. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE, THE SERVICE, AND ACCESS TO THE SERVERS, OR THE DIRECTORIES AND LISTINGS DATA, IS ASSUMED BY USER.
You acknowledge that you are aware of security and privacy limitations including but not limited to (1) the limitation of security, privacy and authentication measures in this system; (2) that data and information obtained through the Software may be subject to eavesdropping, sniffing, imposturing, breaking passwords, harassment or other security or privacy hazards or may reach an erroneous address or recipient.
6. Specifically Limited Warranty.
FileSwap makes no warranty or guarantee as to the availability or reliability of the Software. This service granted to you, can be terminated, limited or denied at any time, temporarily or permanently, with no advance notice. The Software's functionality may be changed, reduced or limited at any time. FileSwap may elect to grant different grade of service or no service at all and different priorities to different users or to different functions, at any time without prior notice, at its sole discretion. FileSwap may elect in its sole discretion to condition the continuation of access to its servers, on your accepting software improvements, corrections, adaptations, or changes to the Software, the services or the charges.
7. No Information Control By FileSwap.
7.1. Unless produced by FileSwap, the information you access by using the Software, is provided, uploaded, developed entered or posted by persons over whom FileSwap exercises no control (users, web-masters, site managers, publishers and so forth) ("Third Parties"). The process of including sites, software and files, details and materials ("Materials") in the index, database and the FileSwap web-site is largely automatic. FileSwap cannot and does not screen the Materials or any part thereof and the information provided by the Third Parties is not reviewed, controlled, examined or endorsed by FileSwap. Accordingly, FileSwap assumes no responsibility for the content of any of the Materials.
7.2. FileSwap is not responsible for any information, including without limitation, users' personal data, user posted web-site material or any other user information posted, submitted on or through the Software or residing on FileSwap's servers. FileSwap may erase, remove, delete, delay, jam or alter such information without prior notice, for functional or any other reason.
7.3. Privacy Policy. FileSwap maintains a privacy policy. This policy is available to you and may be accessed on the FileSwap web-site. Should you become aware of anything that may jeopardize this FileSwap privacy policy, you hereby undertake to notify FileSwap immediately and without delay of any such circumstances.
7.4. OBSCENITY. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE MATERIALS AVAILABLE ON THE INTERNET WHICH MAY NOT BE SUITABLE FOR MINORS AND THAT FILESWAP IS NOT RESPONSIBLE FOR THE PREVENTION OF ACCESS TO SUCH MATERIAL AND RESOURCES BY MINORS OR OTHERS. YOU AGREE THAT YOU HAVE THE SOLE RESPONSIBILITY FOR MONITORING WHAT IS AVAILABLE TO ANY MINORS OR OTHERS WHO HAVE ACCESS TO THE INTERNET THROUGH YOUR ACCOUNT WITH OR WITHOUT THE USE OF THE SOFTWARE. YOU FURTHER AGREE THAT YOU HAVE SOLE RESPONSIBILITY FOR COMPLIANCE WITH OBSCENITY LAWS WITH RESPECT TO MATERIALS RETRIEVED VIA FILESWAP WEB-SITE AND/OR THE SOFTWARE.
8. Limitation on Liability.
8.1. IN NO EVENT SHALL FILESWAP BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SOFTWARE, MATERIALS OR ANY OTHER INFORMATION EVEN IF ADVISED OF THE POSSIBLITY THEREOF, AND REGARDLESS OF WHETHER ANY CLAIM IS BASED UPON ANY CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY.
8.2. IN NO EVENT SHALL FILESWAP BE LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY INFORMATION GIVING RISE TO SUCH DAMAGES, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR INVALIDITY OF SUBSECTION 8.1 ABOVE. DUE TO THE FACT THAT SOME JURSIDCTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION MAY BE APPLICABLE TO YOU ONLY TO THE EXTENT THAT IS PERMITTED UNDER THE LAW. YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF ANY CONTENT PROVIDED BY YOU AND/OR ANY MATERIAL TO WHICH USERS CAN LINK THROUGH SUCH CONTENT.
9. Term and Termination.
You may terminate this EULA at any time by written notice to FileSwap. FileSwap may terminate this EULA immediately in the event of breach by you of any of the terms herein. Upon termination, you shall discontinue use and certify as destroyed, or return to FileSwap, all copies of the Software.
10. Miscellaneous.
10.1. U.S. Government Restricted Rights [for users in the U.S.]. The Software and any accompanying documentation are provided with restricted rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (b) (3) and (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 CFR 52.227 - 19, as applicable.
10.2. Governing Law and Dispute Resolution. This EULA shall be governed by the laws of Israel. Any dispute that may arise with regard to this EULA and or the Software shall be litigated solely in the competent court of the state of Israel, the district of Tel Aviv, and the parties hereby irrevocably submit to such jurisdiction. Neither party may raise a claim more than 3 years after it arises or any shorter period provided by applicable statutes of limitations.
10.3. Surviability. If any provision in this EULA should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this EULA if no such modification is possible, and other provisions of this EULA shall remain in full force and effect. The provisions of this EULA which require or contemplate performance after the expiration or termination of this EULA shall be enforceable notwithstanding said expiration or termination.
10.4. Waivers. A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
10.5. Headings. The headings to the sections of this EULA are used for convenience only and shall have no substantive meaning.
