Internet Magazine 2003 October/INTERNET108.ISO/pc/software/windows/utils/kazaa_media_desktop/kmd.exe/kmd_eula.txt

Text File | 2003-06-23 | 21.1 KB | 497 lines

Welcome! It is important that you carefully read these terms
before installing the Kazaa Media Desktop software.

These terms when accepted by you form a licence ("Licence")
agreement between Sharman Networks Limited ("Sharman")
and you ("You," "Your" Or "User") for the use of the Kazaa
Media Desktop, including any and all versions or variations of
the Kazaa Media Desktop software (collectively, "Kazaa Media
Desktop" or the "Software").

In order to use Kazaa Media Desktop, you must first read and
accept the terms of this Licence, and confirm your acceptance of
the terms of this Licence by clicking the 'I Agree' checkbox
below. If you are a minor you will become eligible to use Kazaa
Media Desktop upon your parent or guardian reading and
accepting the terms of this Licence and confirming acceptance
of the terms of this Licence by clicking the 'I Agree' checkbox
on the Kazaa Media Desktop download screen.

IF YOU DO NOT CHECK THE 'I AGREE' BOX ON THE
KAZAA MEDIA DESKTOP INSTALLER SCREEN YOU
WILL NOT BE ABLE TO INSTALL THE SOFTWARE.

1. What You Can Do Under This Licence

1.1 Subject to all the terms of this Licence, Sharman grants you
a limited, non-exclusive, personal, non-sublicensable, non-
assignable licence to install and use the Kazaa Media Desktop
and any future fixes, updates and upgrades provided to you
(collectively, the "Software") on a computer.

1.2 Unless explicitly stated otherwise, any new features that
augment or enhance the current Software, including the release
of new properties, shall be subject to terms of this Licence.

2 What You Can't Do Under This Licence

You agree not to use the Software to:

2.1 Transmit or communicate any data that is unlawful, harmful,
threatening, abusive, harassing, defamatory, vulgar, obscene,
invasive of another's privacy, hateful, or racially, ethnically or
otherwise objectionable;

2.2 Harm minors in any way;

2.3 Impersonate any person or entity or falsely state or otherwise
misrepresent your affiliation with a person or entity;

2.4 Forge headers or otherwise manipulate identifiers in order to
disguise the origin of any data transmitted to other users;

2.5 Transmit, access or communicate any data that you do not
have a right to transmit under any law or under contractual or
fiduciary relationships (such as inside information, proprietary
and confidential information learned or disclosed as part of
employment relationships or under non-disclosure agreements);

2.6 Transmit, access or communicate any data that infringes any
patent, trademark, trade secret, copyright or other proprietary
rights of any party;

2.7 Transmit or communicate any data that contains software
viruses or any other computer code, files or programs designed
to interrupt, destroy or limit the functionality of any computer
software or hardware or telecommunications equipment;

2.8 Disrupt the normal flow of dialogue, cause a screen to
"scroll" faster than other users are able to type, or otherwise act
in a manner that negatively affects other users' ability to engage
in real time exchanges;

2.9 Interfere with or disrupt the Software;

2.10 Intentionally or unintentionally violate any applicable local,
state, national or international law, including securities exchange
and any regulations requirements, procedures or policies in force
from time to time relating to the Software;

2.11 Monitor traffic or make search requests in order to
accumulate information about individual users;

2.12 "Stalk" or otherwise harass another;

2.13 Modify, delete or damage any information contained on the
personal computer of any Kazaa Media Desktop user; or

2.14 Collect or store personal data about other users.

3 More Do's and Don'ts

3.1 This Licence allows you to install and use the Kazaa Media
Desktop on a single computer. This Licence does not permit you
to install the Software on more than one computer at a time. You
may make copies of the Software in machine-readable form for
backup purposes only. The backup copy must include all
copyright information contained on the original.

3.2 Except as expressly permitted in this Licence, you agree not
to reverse engineer, de-compile, disassemble, alter, duplicate,
modify, rent, lease, loan, sublicense, make copies, create
derivative works from, distribute or provide others with the
Software in whole or part, transmit or communicate the
application over a network.

3.3 You may not sell, transfer or communicate the Software to
any third party without our prior express written consent.

4 Things You Need To Know When Using The Kazaa Media
Desktop

4.1 You are responsible for paying all applicable taxes and other
costs you may incur in connection with your use of the Software
including but not limited to all hardware and software costs and
providing all equipment and software necessary to connect to
our web site and to use the Software via the Internet and any
royalties or other charges relating to the use of data owned by
third parties.

4.2 Sharman may from time to time present programming fixes,
updates and upgrades to you, including version updates to the
Software. You may accept or reject such programming fixes,
updates and upgrades to you, including version updates at your
sole discretion.

4.3 Installation. When you install the Software, the install
program, e.g. kmd250_en.exe, is saved to your My Shared
Folder and shared out to other users. You understand and agree
that other users may download this file from your computer and
by doing so your Internet connection will be used. If you do not
want this to happen, you can delete the file or right click the file
and select 'Do Not Share This File'.

4.4 My Shared Folder. By saving a file in My Shared Folder,
you understand that it will be available for any other user of
Kazaa Media Desktops and compatible programs. These users
may find your files and subsequently download them from you.
By doing so your Internet connection is being used. The
Software provides options regarding sharing:
* To disable sharing go to Tools->Options->Traffic and check
Disable Sharing
* To disable sharing of selected files right click the file in My
Kazaa and select Stop Sharing this file

The Kazaa Media Desktop program is a "peer-to-peer" program;
this means that it communicates with other peers (other Kazaa
Media Desktops or compatible programs). Other users may
download files that you have stored in the My Shared Folder and
other folders you have selected to be shared.  Don't share files
which are confidential, such as financial information, or which
you do not have the right to distribute.

While your instance of Kazaa Media Desktop is communicating
with other peers it receives information of the status of
interconnected peers, that information is stored on your
computer.

4.5 SuperNode. Your copy of the Software may serve as a
SuperNode. The selection process is automated. When your
computer is a SuperNode other peers will upload an index of
files they are sharing to your computer and they will send search
queries to your computer. Your computer will reply to these
requests and also forward the request to other SuperNodes.

If you do not want to serve as a SuperNode go to Tools ->
Options -> Advanced and check 'Do not function as a
SuperNode'. When you are a SuperNode your CPU and Internet
connection is being used, but not more than 10% of the
resources will be used.

5 Things You Need To Do When Using The Kazaa Media
Desktop

5.1 It is your responsibility to ensure that you obtain all
consents, authorisations and clearances in any data owned or
controlled by third parties that you transmit, access or
communicate to others using the Kazaa Media Desktop.

5.2 Sharman will not be liable in any way:

5.2.1 for any errors or omissions in any data, or for any loss or
damage of any kind incurred as a result of any data transmitted
via the Software;

5.2.2 if you are exposed to data that is offensive, indecent or
objectionable; or

5.2.3 for any allegations or findings of infringement of copyright
or other proprietary rights as a result of your use of the
Software.

6 Copyright Infringement

6.1 Sharman respects copyright and other laws. Sharman
requires all Kazaa Media Desktop users to comply with
copyright and other laws. Sharman does not by the supply of the
Software authorise you to infringe the copyright or other rights
of third parties.

6.2 As a condition to use the Software, you agree that you must
not use the Software to infringe the intellectual property or other
rights of others, in any way. The unauthorised reproduction,
distribution, modification, public display, communication to the
public or public performance of copyrighted works is an
infringement of copyright.

6.3 Users are entirely responsible for their conduct and for
ensuring that it complies with all applicable copyright and data-
protection laws. In the event a user fails to comply with laws
regarding copyrights or other intellectual property rights and
data-protection and privacy, such a user may be exposed to civil
and criminal liability, including possible fines and jail time.

7 Sharman's Right to Run Advertising without Payment to
Users

7.1 Sharman reserves the right to run advertisements and
promotions on the Kazaa Media Desktop.

7.2 By accepting the terms of this Licence, you agree that we
have the right to run such advertisements and promotions
without compensation to you.

7.3 The timing, frequency, placement and extent of advertising
by us within the pages comprising kazaa.com or the Kazaa
Media Desktop is subject to change and shall be determined by
us at our sole discretion.

7.4 Your correspondence or business dealings with, or
participation in promotions of, advertisers found on or through
the Kazaa web site or Kazaa Media Desktop, including payment
and delivery of related goods or services, and any other terms,
conditions, warranties or representations associated with such
dealings, are solely between you and such advertiser.

7.5 You agree that Sharman is not responsible or liable 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 advertisers on
the Kazaa Media Desktop and/ or the Kazaa web site.


8 Links to Third-Party Sites and Channels

8.1 Sharman may provide links to or frame various third party web
sites or frame within such sites through the Software or on kazaa.com,
including co-branding and other relationships that offer e-commerce
and other services and features to users. Any third-party sites,
including channels, to which kazaa.com or the Kazaa Media Desktop
may link or frame are not under control of Sharman. Sharman does
not have any responsibility or liability for any information, data,
communications or materials available on such third-party sites.
These linked and framed sites are only for your convenience and
you therefore access them at your own risk.


9 Third Party Software

9.1 During the process of installing Kazaa Media Desktop, you
must install software from third party software vendors pursuant
to licences or other arrangements between such vendors and
yourself ("Third Party Software"), including without limitation
those software components noted in Section 9.4 below. Please
note that the Third Party Software may be subject to different
licences or other arrangements, which you should read carefully.
By installing and using this Third Party Software you accept
these Third Party Software licences or other arrangements and
acknowledge that you have read them and understand them.
Sharman does not sell, resell, or license any of this Third Party
Software, and Sharman disclaims to the maximum extent
permitted by applicable law, any responsibility for or liability
related to the Third Party Software. Any questions, complaints
or claims related to the Third Party Software should be directed
to the appropriate vendor.

9.2 Sharman makes no representations or warranties of any kind
concerning the quality, safety or suitability of this software,
either express or implied, including without limitation any
implied warranties of merchantability, fitness for a particular
purpose, or non-infringement to the maximum extent permitted
by applicable law, in no event will Sharman be liable for any
indirect, punitive, special, incidental or consequential damages
however they may arise and even if Sharman has been
previously advised of the possibility of such damages.

9.3 There are inherent dangers in the use of any software
available for downloading on the Internet, and Sharman cautions
you to make sure that you completely understand the potential
risks before agreeing to install any of the Third Party Software.
You are solely responsible for adequate protection and backup
of the data and equipment used in connection with any of the
Third Party Software, and Sharman will not be liable for any
damages that you may suffer in connection with using,
modifying or distributing any of the Third Party Software.

9.4 Embedded Third Party Software

9.4.1 Cydoor. The Software includes a Cydoor Technologies
advertising delivery program, which may display web content
such as banner ads, e-commerce offers, news headlines and
other value-added content. The Cydoor component uses your
Internet connection to update its selection of available ads and
stores them on your hard drive.   For information on Cydoor
Technologies and their software, go to http://www.cydoor.com.
For information on their privacy policy, go to
http://www.cydoor.com/Cydoor/Company/CompanyPrivacy.ht
m.

9.4.2 Topsearch. The Software includes the Topseach software
provided by Altnet.  The Topsearch component regularly
downloads an index of available Altnet content through your
Internet connection. This index contains a list of available rights
managed files which can be displayed in your search results.
For information on Altnet and their software, go to
www.altnet.com.  For information on their privacy policy, go to
http://www.altnet.com/privacy/.

9.4.3 Bullguard P2P. The Software comes with a virus
protection feature provided by Bullguard Technology, which is
designed to guard your computer from virus attacks by
quarantining and deleting files downloaded via P2P that may
have a virus.  The BullGuard P2P component will update its
virus definition file through your Internet connection.  . For
information on Bullguard and their software, go to
http://www.bullguard.com  For information on their privacy
policy, go to http://www.bullguard.com/privacypolicy.aspx

10 Applicable Law

10.1 This Licence as well as all disputes arising out of or in
connection with this Licence shall be governed by the laws of
the New South Wales, Australia, without regard to or
application of choice of law rules or principles.

10.2 Any dispute arising out of or in connection with this
Licence, or in future agreements resulting there from, shall be
exclusively resolved before the competent court in New South
Wales, Australia.

11 Points To Consider For International Use

11.1 Recognising the global nature of the Internet, you agree to
comply with all local rules regarding on-line conduct and
acceptable data. Specifically, you agree to comply with all
applicable laws regarding copyright and the transmission of
technical data exported from the country in which you reside.

12 Indemnification

12.1 YOU AGREE TO INDEMNIFY, HOLD HARMLESS
AND DEFEND SHARMAN, AND ITS SUBSIDIARIES,
AFFILIATES, OFFICERS, AGENTS, CO-BRANDERS OR
OTHER PARTNERS, AND EMPLOYEES, AT YOUR
EXPENSE, AGAINST ANY AND ALL THIRD PARTY
CLAIMS OR DEMANDS, ACTIONS, PROCEEDINGS AND
SUITS AND ALL RELATED LIABILITIES, DAMAGES,
SETTLEMENTS, PENALTIES, FINES COSTS AND
EXPENSES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEY'S FEES AND OTHER DISPUTE
RESOLUTION EXPENSES) INCURRED BY SHARMAN,
DUE TO OR ARISING OUT OF DATA YOU SUBMIT, POST
TO, TRANSMIT OR COMMUNICATE THROUGH THE
SOFTWARE, YOUR USE OR MISUSE OF THE
SOFTWARE, YOUR CONNECTION TO OTHER USERS,
YOUR VIOLATION OF THE LICENSE, OR YOUR
VIOLATION OF ANY RIGHTS OF ANOTHER.

13 Disclaimers of Warranties

13.1 THE SOFTWARE IS PROVIDED "AS IS", AND ON AN
"AS AVAILABLE" BASIS AND THERE ARE NO CLAIMS,
REPRESENTATIONS AND WARRANTIES MADE BY
SHARMAN, EITHER EXPRESS, IMPLIED OR STATUTORY
(TO THE EXTENT PERMITTED BY APPLICABLE LAW),
WITH RESPECT TO THE SOFTWARE, INCLUDING BUT
NOT LIMITED TO, WARRANTIES OF QUALITY,
PERFORMANCE, TITLE, NON- INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, NOR ARE THERE ANY WARRANTIES
CREATED BY COURSE OF DEALING, COURSE OF
PERFORMANCE OR TRADE USAGE.

13.2 ANY DATA DOWNLOADED THROUGH THE USE OF
THE SOFTWARE IS DONE AT YOUR OWN DISCRETION
AND RISK AND YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR
LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD
OR USE OF ANY SUCH MATERIAL.

14 Limitation of Liability

14.1 YOU UNDERSTAND AND AGREE THAT IN NO
EVENT SHALL SHARMAN BE LIABLE WHETHER IN
CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE WHETHER ACTIVE, PASSIVE OR
IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY,
EVEN IF SHARMAN HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
OR EXEMPLARY DAMAGES, INCLUDING BUT NOT
LIMITED TO DAMAGES FOR LOSS OF PROFITS,
GOODWILL, USE, DATA OR OTHER INTANGIBLE
LOSSES, RESULTING FROM:

14.1.1 THE USE OR THE INABILITY TO USE THE
SOFTWARE;

14.1.2 THE COST OF PROCUREMENT OF SUBSTITUTE
GOODS, DATA, INFORMATION OR SERVICES
PURCHASED OR OBTAINED OR MESSAGES RECEIVED
OR TRANSACTIONS ENTERED INTO THROUGH OR
FROM THE USE OF THE SOFTWARE;

14.1.3 UNAUTHORISED ACCESS TO OR ALTERATION OF
YOUR TRANSMISSIONS OR DATA;

14.1.4 STATEMENTS OR CONDUCT OF ANY THIRD
PARTY USING THE SOFTWARE; OR

14.1.5 ANY OTHER MATTER RELATING TO THE USE OF
THE SOFTWARE. IN NO EVENT SHALL SHARMAN'S
TOTAL LIABILITY TO YOU FOR ALL DAMAGES
EXCEED THE AMOUNT OF FIFTY AUSTRALIAN
DOLLARS ($50).

14.2 WHERE THE TRADE PRACTICES ACT 1974 (CTH)
OR SIMILAR STATE AND TERRITORY LEGISLATION
IMPLIES INTO THIS LICENCE ANY CONDITION OR
WARRANTY, AND THOSE LAWS AVOID OR PROHIBIT
CONDITIONS IN A CONTRACT EXCLUDING OR
MODIFYING THEM, THEN THE TERM, CONDITION OR
WARRANTY SHALL BE DEEMED TO BE INCLUDED IN
THIS LICENCE, PROVIDED THAT TO THE FULL EXTENT
THAT SHARMAN IS ABLE TO THE LIABILITY OF
SHARMAN FOR A BREACH OF ANY SUCH CONDITION
OR WARRANTY, INCLUDING AND ECONOMIC OR
CONSEQUENTIAL LOSS, SHALL BE LIMITED AT THE
OPTION OF SHARMAN TO ONE OR MORE OF THE
FOLLOWING:

14.2.1 IF THE BREACH RELATED TO GOODS: (A) THE
REPLACEMENT OF THE GOODS OR THE SUPPLY OF
EQUIVALENT GOODS; (B) THE REPAIR OF GOODS; (C)
THE PAYMENT OF THE COST OF REPLACING THE
GOODS OR OBTAINING EQUIVALENT GOODS; (D) THE
PAYMENT OF HAVING THE GOODS REPAIRED; OR
14.2.2 IF THE BREACH RELATES TO SERVICES: (A) THE
SUPPLY OF THE SERVICE AGAIN; OR (B) THE
PAYMENT OF THE COST OF HAVING THE SERVICE
SUPPLIED AGAIN.

15 Termination

15.1 It is you responsibility to comply with the terms of this
Licence and to obey the laws of your jurisdiction. Your rights
under this Licence will terminate immediately and without prior
notice if : you violate any term of this License, including
violating any applicable laws or rights of any third party
including the intellectual property rights of any such third party.
You may be subject to legal action if you continue to use the
Kazaa Media Desktop in violation of this Licence.

16 Trademarks and Trade Dress

17.1 The Kazaa name, the Kazaa logo, and other Kazaa related
properties are trademarks of Sharman. All other trademarks
appearing on Kazaa Media Desktop are trademarks of their
respective owners.

17.2 Kazaa "green" (Hex #98CC00) is a trade dress of Sharman
Networks.

17 Miscellaneous

17.1 This Licence constitutes the entire understanding of you
and Sharman with respect to the Software and the subject matter
hereof. There are no understandings, agreements, conditions or
representations, oral or written, express or implied, with
reference to the subject matter hereof that are not merged herein,
expressly referenced herein, or superseded hereby.

17.2 The failure or delay of Sharman to exercise or enforce any
rights or provision of the Licence does not constitute a waiver of
such right or provision.

17.3 All provisions which must survive in order to give effect to
their meaning, shall survive any expiration or termination of this
Licence, including without limitation all of your representations,
warranties and indemnification obligations.

17.4 Should any part of this Licence be held invalid by any court
or tribunal, such invalidity shall not affect the validity of any
remaining part, which will remain in full force and effect as if
this License had been executed without that part having been
held to be invalid.