IMPORTANT! PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR OTHERWISE USING ANY CONTENT (AS DEFINED BELOW) FROM THIS WEB SITE. BY CLICKING ON THE “YES” OR “ACCEPT” BUTTON, OR OTHERWISE DOWNLOADING OR ACCESSING THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. YOU SHOULD PRINT-OUT A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD CLICK THE “DO NOT ACCEPT” OR “REJECT” BUTTON TO TERMINATE THE DOWNLOAD PROCESS. CONTENT PROVIDER (AS DEFINED BELOW) AGREES TO LICENSE THE CONTENT TO YOU ONLY IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN.
Content: Means all materials downloadable from this web site, including, but not limited to all literary works, text, pictorial and graphical works, photographs, video and audio clips, motion pictures and other audio visual works, video games, music, soundtracks, button icons, streaming data, animation, images, compilations, .RAM files, .AVI files, or any other software files (in object code or source code format).
License Grant: Subject to the terms and conditions of this Agreement, provided that you are a member in good-standing to this web site or are otherwise permitted by Content Provider to download the Content, Content Provider hereby grants you a limited, non-transferable, non-assignable, worldwide, non-exclusive right to use the Content solely for your own internal non-commercial personal use. You may cache the Content onto the hard drive of a single computer for your personal, non-commercial internal use. The rights granted hereunder constitute a license, not a sale, of the applicable Content.
Restrictions on Use of Content:
Ownership: As between the parties, the Content and all patents, copyrights, trade secrets, trademarks, service marks, know-how and any other proprietary rights therein or thereto, is the sole and exclusive property of Content Provider (or Content Provider’s licensors), and you gain no right, title or interest in and to the Content by virtue of this Agreement other than the limited licenses granted herein expressly in Section II(a) above.
Notices: You shall include such proprietary rights and other notices on each copy of the Content as may be provided by Content Provider to you from time to time, or as may be generated automatically by the Content. You shall not remove or obscure any such notices.
Remedy for Breach of License: In addition to all other rights and remedies available to Content Provider at law or in equity, any violation of the licensing provisions of this Section II by you (or any third party to whom you have provided access to the Content) shall constitute a material breach of this Agreement and Content Provider shall have the immediate right to terminate this Agreement and all licenses granted hereunder, and Content Provider may seek any and all appropriate remedies, including but not limited to injunctive relief for patent, copyright, or trademark infringement, misappropriation of trade secrets, breach of confidence, or any other theory, as applicable.
Taxes: All fees and other charges set forth in the download/installation process do not include any federal, state, or local sales, use, value-added, property, excise, withholding or other taxes, customs or duties now or hereafter levied which shall be for your account. Any taxes or amounts in lieu thereof paid or payable by Content Provider in respect of any such taxes on such fees or charges (excepting only taxes on net income) shall be added to your obligations as an additional charge which shall be due within thirty (30) days after invoice therefor.
Term and Termination:
Effect of Termination: Upon termination of this Agreement for any reason, (1) all licenses granted hereunder shall terminate immediately, (2) you shall erase and destroy all copies of the Content (including, without limitation deleting the Content from any cached files on the hard drive of your computer); and (3) Content Provider shall immediately cease providing access to the Content to you.
Rights to Injunctive Relief: Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach of Section 2, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
Arbitration: If there is a dispute between the parties arising out of or relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Seminole County Florida, and conducted by a single arbitrator, knowledgeable in software, the Internet and e-Commerce. The party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator’s fees, unless attorneys fees may be awarded to the prevailing party as a matter of substantive law. The arbitrator shall have no authority to award any punitive or exemplary damages, certify a class action, add any parties, or to vary or ignore the terms of this Agreement and shall be bound by governing and applicable law. This Section shall not apply to any breach (or any allegation which if true would constitute a breach) of Section 2.
Assignment: The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by you.
Severability: If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
No Waiver: Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
Complete Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
Relationship Between the Parties: Content Provider is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
Headings Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
Force Majeure Content Provider shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, including Y2K errors or omissions, for so long as such event continues to delay Content Provider’s performance.