1. License: Hotbar.com Inc. ("Hotbar") hereby grants to you ("Licensee") a personal, non-exclusive, non transferable and royalty-free license to use the accompanying software product, in machine executable object code form (the "Software") subject to the terms and conditions set forth below. For the sole purpose of using the Software, the Licensee is granted with a limited non-exclusive non transferable and royalty-free license to access to information supplied and generated by Hotbar from time to time at its sole discretion ("the "Service"), subject to the terms and conditions set forth below.
2. The Software and Service: The Software and the Service is intended to enable downloading and installing of skin images ("Skins") as the background of your MS Explorer toolbar and enhance your MS Explorer functionality by adding dynamic services to your toolbar enabling it to receive various information and services including data, links, software and images from the Hotbar servers on an ongoing basis.
3. Scope of License:
3.1 Licensee may use the Software on any computer under his full control, provided however that any copy of the Software must contain all of the original Software's proprietary notices and this Agreement .
3.2 Licensee may not use the Service and/or the Software to: (i) perform any activity which is or may be, directly or indirectly unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) perform any activity which will or may breach a third party right (iii) engage in commercial activities including, but not limited to offering for sale any products or services, soliciting for advertisers or sponsors or selling, licensing or granting public access to any information offered on the Service.
3.3 Without derogating from the generality of the foregoing section, the Licensee acknowledges that the Service may contain features enabling users to transmit various types of communications (e.g. skin images) to other users. The license to use the Service specifically excludes spamming, junk mail, any form of harassing activities, imposturing and activities which are intended or may result in invasion of privacy or damages to other users. The Licensee undertakes to refrain from such activities and shall be solely liable for any consequence of the referenced forbidden actions.
3.4 All services and features offered at the Hotbar's site for use with the Software (such as skin download or offering skins by email) are part of the Service and the use of such services/features is governed by this Agreement. Such services/features however may be subject to additional specific Terms of Use posted on the page in which such features are offered which come in addition to the terms set forth herein. The Licensee agrees that his/her use of such feature/service also constitutes his/her consent to its applicable Terms of Use.
4. Change of License. Hotbar is permitted, at any time and for whatever reason, to limit, deny, create different priorities to different users, modify, or cancel some or all of the functionality or content of the Software or the Service at any time, without prior notice. Hotbar may elect in its sole discretion to condition the continuation of this license, on the Licensee accepting software improvements, corrections, adaptations, conversions to more recent Software versions or any other changes to the Software or the Service.
5. Protection of Proprietary Rights: title, ownership rights, and intellectual property rights in and to the Software and the Service shall remain at all times in Hotbar and/or its licensors and suppliers and nothing in this Agreement shall be deemed as a grant of such right to Licensee. Licensee may not modify, translate, reverse engineer, decompile or disassemble the Software, Service or information on the Service, create derivative works based on the Software, the Service or information on the Service, copy the Software (except as specified above), export, sell, license, rent, lease, transfer or otherwise transfer rights to the Software, the Service, or information on the Service, or remove any proprietary notices or labels on the Software.
6. Licensee's acknowledgments relating to privacy issues: Licensee expressly acknowledges and agrees that:
6.1 Licensee's use of the Service ("Statistical Data") may be monitored and recorded by Hotbar for the sole purposes of gathering information and usage pattern related to the use of the Software and the Service, for other statistical and analysis purposes including bookmark and site ratings, for and to enable Hotbar to fit targeted or personalized offerings of information to the Licensee.
6.2 Hotbar may use for commercial purposes including advertising, marketing, rating, registration of products or promotion of activities, Statistical Data or any part thereof, combined or separately, provided that such use will not disclose Licensee's personally identifiable information (such as name and email) unless Licensee has consented to such disclosing of his personally identifiable information.
7. Licensee's acknowledgments relating to Software and the Service: Licensee expressly acknowledges and agrees that:
7.1 By using the Internet and/or the Software and/or the Service, Licensee may be exposed to contaminated files, computer viruses, eavesdropping, harassment, electronic trespassing, hacking and other harmful acts or consequences that might lead to unauthorized invasion of privacy, loss of data and other damages.
Furthermore, by installing the Software on Licensee's computer, Licensee agrees that (i) certain system non-personally identifiable information including Statistical Data (as defined hereunder) stored on Licensee's computer will be made available and transmittable to Hotbar servers (ii) other information available now or in the future on the Service including, links, services, messages advertisements and the like will be installed on his computer, including cookies (iii) In case Licensee clicks his agreement during registration procedure, Hotbar may automatically tansmit and install on Licensee's computer, Software improvements, corrections, adaptations, conversions to more recent Software versions or any other changes to the Software, solely in order to ensure the continuation of an ongoing access to the Service.
7.2 The functionality of the Software and/or the Service depends, among other things, on the availability of Internet connectivity, information by Hotbar servers, net congestion and other factors. Hotbar makes no warranties or guarantees as to the availability or reliability of the Service or the information provided to Licensee or to any other user nor makes any commitment to provide Licesee with any information or to provide an on-going operational Service. Hotbar at any time may suspend or cancel the Service for any reason without prior notice.
7.3 The Software or the Service is not specifically licensed for use in circumstances in which the malfunction of the Software or the Service or the unavailability of information by Hotbar servers, may causepersonal injury or death or damage to property. Neither Hotbar nor its licensors or suppliers shall be liable for any claims or damages arising from such events.
7.4 The Software and the Service is in a pre-release beta state only and may contain errors or inaccuracies that could cause failures or loss of data. Hotbar does not guarantee or assume responsibility for any consequence of beta testing. Owing to the experimental nature of the Software and the Service as a beta product, the Licensee will not rely on the Software or the Service for any reason.
7.5 THE SOFTWARE AND THE SERVICE ARE PROVIDED "AS IS", AT LICNESEE'S OWN RISK, AND WITHOUT WARRANTY OF ANY KIND. HOTBAR AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT, REGARDINGTHE SOFTWARE OR THE SERVICE. NEITHER HOTBAR NOR ITS LICENSORS OR SUPPLIERS WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR THE SERVICE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR CURRENTNESS OR THAT THE OPERATION OF THE SOFTWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
8. Licensee's acknowledgments relating to Information and Skins: Licensee expressly acknowledges and agrees that:
8.1 The information Licensee will be exposed to, or receives, or uses with the Software and/or the Service, including images, Skins, links, bookmarks, WWW sites, advertisements, products, goods or services, is not reviewed, controlled, examined, verified or endorsed by Hotbar in any way and are the sole responsibility of the person from whom such information originated. Licensee will be entirely responsible for all information that he/she downloads, uploads, sends or otherwise accesses via the Service and will independently determine whether he/she has adequate legal rights to store, link to, browse in, or otherwise make use of such information or whether such information complies with any legal rule, including but not limited to, rules of copyright, secrecy, defamation, decency, privacy, security and export laws. Hotbar will not be liable for any such information available through the Software and/or the Service and can not provide any guarantee as to the accuracy, integrity or quality of such information. nor any reliance on such information including any damage, deletion, erasure or other change of such information for any reason whatsoever.
8.2 Participation in promotions or advertising of products and services found on the Service, including order, purchase, payment and delivery of any related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between the Licensee and the specific advertiser. Licensee agrees that Hotbar will not liable in any way for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such promotion or advertising materials on the Service.
9. Limitation Of Liability:
9.1 Hotbar's liability to Licensee or any third party arising out of or related to this Agreement however caused and on any theory of liability, whether in contract, tort (including negligence), or otherwise will not exceed the fee, if any, paid by Licensee for the Software.
9.2 In no event shall Hotbar be liable to anyone for any unavailability, delays, inaccuracies, errors or omissions with respect to any information used received or transmitted by the Software and/or Service, or for any damage arising therefrom or occasioned thereby, or for the results obtained from the use of such information, including without limitation any risk of the introduction of computer viruses, invasion of privacy and any risk arising out of any content transmitted or received in connection with the use of the Software or the Service. licensee assumes the entire risk for the accuracy, adequacy, completeness, correctness, validity and quality of any information.
9.3 IN NO EVENT WILL HOTBAR OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL,INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR COST OF OBTAINING SUBSTITUTE GOODS, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA AND EQUIPMENT, AND OTHER SUCH DAMAGE OR LOSS), HOWEVER CAUSED (INCLUDING WITHOUT LIMITATION ANY LOSS CAUSED BY THE INTRODUCTION OF COMPUTER VIRUSES OR CONTENT TRANSMITTED OR RECEIVED IN CONNECTION WITH THE USE OF THE SOFTWARE OR THE SERVICE) AND ON ANY THEORY OF LIABILITY, WHETHER BASED IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, EVEN IF HOTBAR,OR ITS LICENSORS, SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Termination: Hotbar and Licensee shall have the right to terminate this Agreement at any time for any reason whatsoever and without any obligation to specify the reasons for such termination. Without derogating from the foregoing sentence, the Agreement, including all of Licensee's right to use the Software and the Service, will terminate automatically and immediately if (i) Licensee fails to comply with the provisions of this agreement, or (ii) Licensee uses the Software or the Service for illegal unlawful or abusive purposes, or (iii) during "Service Account Cleanup" intended to terminate accounts not used at least once in the preceding 6 months period. Upon termination, Licensee must immediately stop using the Software and/or the Service and destroy all copies of the Software.
11. Export Law Assurances: Licensee agrees not to export the Software outside the country in which the Software was downloaded except as permitted by the laws and regulations of such country.
12. Changes of License Terms: Hotbar may change, from time to time, the terms of this Agreement and notify of such change to the Licensee. Licensee agrees that the continuing to use of the Software and/or the Service, for a period of 30 days after such notice has been provided directly to Licensee or on the Hotbar Web site for the first time, shall constitute his/her consent to the new or revised license agreement.
13. Miscellaneous: This Agreement represents the complete agreement between Licensee and Hotbar concerning the subject matter hereof and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the highest extent. Except as set forth in Section 12, this Agreement cannot be amended, modified, or waived, unless the change is written and signed by an authorized Hotbar representative. Hotbar may transfer, assign sublicense or pledge in any manner whatsoever, any of its rights and obligations under this agreement to any third party whatsoever, without notice and without the need to receive Licensee's consent. Licensee shall not transfer, assign, sublicense nor pledge in any manner whatsoever, any of Licensee's rights or obligations under this agreement. For US Licensees, this Agreement is governed by the laws of the State of California, with out reference to its conflict of law principles and the exclusive jurisdiction for any dispute arising hereunder shall be submitted to the competent courts in California. For Licensees residing out of the US, this Agreement is governed by the laws of the State of Israel, with out reference to its conflict of law principles and the exclusive jurisdiction for any dispute arising hereunder shall be submitted to the competent courts in Tel-Aviv, Israel. Any questions concerning this license agreement may be directed by email to 'legal@Hotbar.com'.
