NeoPlanet, Inc. ("NeoPlanet") is willing to license the NeoPlanet Software and its associated online documentation ("Software") to you only upon the condition that you agree to and accept all of the terms and conditions contained in this Software User Agreement ("Agreement"). Please read the terms carefully before clicking on the "Yes" button to download the Software. BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING THE SOFTWARE, YOU CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE BUTTON THAT INDICATES YOU DO NOT ACCEPT THE TERMS AND CONDITIONS AND DO NOT INSTALL THE SOFTWARE.
1. LICENSE. NeoPlanet hereby grants you a limited, non-exclusive, non-transferable license to use the NeoPlanet Software downloaded from The NeoPlanet World Wide Web site located at www.neoplanet.com (the "Site") or from other authorized locations on the World Wide Web in the manner described in this Agreement. The license permits you to:
a. Use the software on a single terminal or a single workstation of a computer (or its replacement);
b. Load the software into your computer's temporary memory (RAM);
c. Install the software onto a permanent storage device (a hard drive) as detailed in the documentation;
d. Make a single copy the Software for back-up purposes, provided the copy contains all of the original Software's proprietary notices and that it is only used for back-up purposes; and
e. Create printouts of output from the Software for your personal use only.
2. Restrictions. The license granted hereunder does not permit you to:
a. Permit other individuals to use the Software except pursuant to the terms and conditions of this Agreement;
b. Modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software;
c. Copy the Software other than as specified above; rent, lease, grant a security interest in, or otherwise attempt to transfer rights to the Software; or
d. Remove or alter any proprietary notices or labels on the Software when creating permitted copies of the Software, or permitted printouts of the Software output.
3. No Unauthorized Reproduction. The Software is licensed and not sold to you, the end user ("User") , pursuant to the terms and conditions of this Agreement. You agree and acknowledge that NeoPlanet and its licensors transfer no ownership interest in the Software, in the intellectual property in the Software or in the Site, to you or anyone else under this Agreement or otherwise, and that NeoPlanet and its licensors reserve all rights not expressly granted to you hereunder. Any reproduction or redistribution of the Software in violation of this Agreement is expressly prohibited by law, and may result in severe civil and criminal penalties. NeoPlanet actively and aggressively enforces its intellectual property rights to the fullest extent of the law. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
4. DISCLAIMER OF WARRANTY AND LIABILITY. USER EXPRESSLY AGREES THAT USE OF THE SOFTWARE AND THE SITE IS AT THE USER'S SOLE RISK. THE SOFTWARE AND THE SITE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, OR OTHERWISE. NEITHER NEOPLANET NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SOFTWARE OR THE SITE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SOFTWARE OR THE SITE OR INABILITY TO USE THE SOFTWARE OR THE SITE OR OUT OF ANY BREACH OF ANY WARRANTY OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION BASED UPON CONTRACT, NEGLIGENCE OR OTHER TORTIOUS CONDUCT, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE OR THE SITE.
NOTWITHSTANDING THE FOREGOING, THE TOTAL AMOUNT OF NEOPLANET'S LIABILITY TO USER SHALL BE LIMITED TO THE AMOUNT USER PAID FOR THE USE OF THE SOFTWARE AND THE SITE, IF ANY.
5. Indemnity. You agree to defend, indemnify, and hold harmless NeoPlanet, Inc. and its parent and affiliates and all of their employees, agents, directors, officers, proprietors, partners, representatives, shareholders, servants, attorneys, predecessors, successors, and assigns, from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys' fees and litigation expenses), relating to or arising from your use of the Software, the Site, any site of yours that you may link to our Site as set forth in section 12 or any breach by you of this Agreement.
6. Proprietary Rights. The Software and all material contained in the Site is protected by law, including but not limited to United States copyright, trade secret, and trademark law, as well as other state, national, and international laws and regulations. The Software is ｩ 1998-99 NeoPlanet, Inc. and/or its licensors. All rights reserved. Patent Pending. NeoPlanet also owns a copyright in the Site as a collective work and/or compilation, and in the selection, coordination, arrangement, and enhancement of such content. Unauthorized use of the Software or any material contained on the Site may violate copyright laws, trademark laws, trade secret laws, the laws of privacy and publicity, and communications regulations and statutes. NEOPLANET is a trademark of NeoPlanet, Inc.
7. Submissions to Site. By transmitting any suggestions, information, material, "skins," "channels," or other content (collectively, "content") to NeoPlanet, you (a) represent and warrant that such content does not infringe the intellectual property or proprietary rights of any third parties (including but not limited to patents, copyrights, trade secret, or trademark rights) and that you have all rights necessary to convey such content to NeoPlanet, and (b) automatically grant to NeoPlanet the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, redistribute, transmit, perform and display such content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content.
Further, NeoPlanet is free to use any ideas, concepts, know-how, techniques, and suggestions contained in any content or communications you send to the Site for any purpose whatsoever, including but not limited to creating, manufacturing, and marketing products and/or services using such information.
8. Creation of Skins and Channels. The Software permits you to create, display, and post unique "skins" and "channels" to be used in connection with the Software. You agree that you shall not create, display, or post any skins or channels that contain or include (a) nudity or pornographic material of any kind, including but not limited to material that exploits children or minors; (b) material that is offensive to the online community, including expressions of bigotry, prejudice, racism, hatred, or profanity; (c) material or information about illegal activities or which promotes harm, injury, or any act of cruelty to persons, property, or animals; (d) defamatory or libelous statements about any person or group; or (e) material which infringes the intellectual property or proprietary rights of any third parties as referenced in Section 7.
9. Third Party Materials, Software, or Services.
a. Third Party Materials on Site: You acknowledge and agree that the Site features materials provided by users and other third parties, including but not limited to user-submitted "channels" and "skins." NeoPlanet makes no representation with respect to, nor does it guarantee or endorse the quality, noninfringement, accuracy, completeness, timeliness, reliability, or correct sequencing of, such third party materials or any other materials which such third party materials may access. NeoPlanet expressly disclaims responsibility and liability for all third-party provided materials contained on or accessed through the Site.
b. Third Party Software or Services: You acknowledge that the Software may incorporate software provided to NeoPlanet by third parties that was not written or developed by NeoPlanet or that the Software as provided by NeoPlanet or as configured by you may access or be used to access services provided by third parties not controlled by NeoPlanet ("Third Party Software or Services"). Without in any way limiting the generality of the foregoing sections, and anything to the contrary in this Agreement notwithstanding, NeoPlanet shall have no liability or responsibility for the operation or performance of the Third Party Software or Services and shall not be liable for any damages, costs, or expenses, direct or indirect, arising out of the performance or failure to perform of the Third Party Software or Services, or from any claims that the Third Party Software or Services or the use thereof infringes the copyright or other proprietary rights of any third party. NEOPLANET MAKES NO WARRANTIES OF ANY KIND WHATSOEVER,
AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT IN CONNECTION WITH SUCH THIRD PARTY SOFTWARE OR SERVICES. You acknowledge and agree that your rights in such Third Party Software or Services may be subject to the terms (including the termination provisions thereof) of any license or other agreement, if any, pursuant to which NeoPlanet has acquired the right to distribute or provide access to the Third Party Software or Services, and NeoPlanet specifically reserves the right to modify or remove such Third Party Software or Services and to terminate all of your rights to such Third Party Software or Services under this Agreement at any time. You agree to cooperate with NeoPlanet and to take all necessary actions for any such modification or removal of Third Party Software or Services by NeoPlanet contemplated by the foregoing.
10. Term and Termination. This Agreement will take effect at the time you click "I Agree" and begin using the Software. NeoPlanet reserves the right at any time to deny you access to the Software or the Site or any portion thereof, and to terminate this Agreement. This Agreement and the license granted hereunder will terminate automatically if you fail to comply with the limitations described herein. Upon termination, you must destroy all copies of the Software and any related documentation.
11. Export Restrictions. This Site is controlled and operated by NeoPlanet from its offices within the United States. NeoPlanet makes no representation that the Software or other materials accessed through the Site are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. Those who choose to access the Software or the Site from other locations do so on their own volition and are responsible for compliance with applicable local laws. You may not export or re-export any Software received under this Agreement except in full compliance with all United States laws and regulations. In particular, none of such Software may be exported or re-exported into (or to a national or resident of) any country to which the U.S. embargoes goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. In addition, you are responsible for complying with any
local laws in your jurisdiction which may impact your right to import, export or use the Software.
12. Restricted Rights. If the End User is an agency, department, or other entity of the United States Government ("Government"), End User's use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for military agencies. The Software is commercial. Use of the Software by any Government agency, department, or other entity of the Government, is further restricted in accordance with the terms of this License, or any modification hereto. Licensor is NeoPlanet, Inc., 1524 West 14th Street, Tempe, AZ, 85281.
13. Linking. The Software is a browser which provides links to other sites on the World Wide Web for your convenience in locating related information and services. These sites are maintained by third parties over which NeoPlanet exercises no control, and accordingly NeoPlanet expressly disclaims any responsibility for the content, the accuracy of the information, and/or quality of products or services provided by or advertised on these third-party Web sites. NeoPlanet has not reviewed all sites linked to the Site and is not responsible for the contents of any off-site pages or any other sites linked to the Site, or which may be accessed using the Software. You are hereby granted a limited-purpose non-exclusive revocable license to display the unaltered NeoPlanet logo on your Web site exactly as it appears in the "Link To Us" section of the Site, in order to establish a hypertext link from your Web site to the Site, but for no other purpose.
NeoPlanet reserves the right to revoke this license if you violate the terms of this Agreement, if your Site is inappropriate or inconsistent with NeoPlanet's image in the sole determination of NeoPlanet, or if you fail to comply with appropriate quality control measures which NeoPlanet may promulgate and communicate with you from time to time. NeoPlanet assumes no responsibility or liability arising in any way from your establishment of such a link to the Site using NeoPlanet's logo.
14. Prohibited Uses. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage. Accordingly, NeoPlanet and its licensors prohibit use of the Software in connection with such activities, and specifically disclaim any express or implied warranty of fitness for such activities.
15. Miscellaneous. The provisions of Sections 4 -15 and Section 17 of this Agreement will survive the termination of this Agreement. Failure to insist on strict performance of any term of this Agreement will not operate as a waiver of any subsequent default or failure of performance. No waiver of any term of this Agreement will be valid unless in writing and acknowledged in writing or electronically by both parties. NeoPlanet reserves the right to and may update or change the Software, or the markings, logos, information, or content relating thereto at any time. If any portion of this Agreement is adjudged invalid or unenforceable by a court of competent jurisdiction, the remaining portions will remain valid, enforceable, and carried into effect.
16. Complete Agreement. This Agreement and NeoPlanet's Privacy Policy (located at www.neoplanet.com/privacy.html), which is hereby incorporated as if set forth fully herein, represents the complete agreement between the parties concerning its subject matter. NeoPlanet may modify this Agreement at any time by publication on the Site. Your continued use of the Software following notice of any such modification will be conclusively deemed acceptance of the revised terms of this Agreement. If any such revision is unacceptable to you, you will terminate use of the Software immediately.
17. Governing Law; Arbitration. This Agreement has been made in and will be construed and enforced in accordance with New York law excluding its conflict of law provisions, as applied to agreements entered into and completely performed in New York. Should a dispute arise from this Agreement which cannot be resolved by the parties in good faith negotiations, both parties agree to submit such dispute to arbitration in New York City, before a single arbitrator using the Commercial Rules of the American Arbitration Association. The non-prevailing party shall bear all costs associated with such arbitration. To the extent that it may otherwise be applicable, the parties hereby expressly agree to exclude from the operation of this Agreement the United Nations Convention on Contracts for the International Sale of Goods, concluded at Vienna, on April 11th 1980, as amended and as may be amended further from time to time.
I REPRESENT AND ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT, UNDERSTAND ITS TERMS, AND AGREE AND INTEND TO BE LEGALLY BOUND BY IT.
