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NETSURFER LICENSE AGREEMENT
1. Grant of License. This is a legal agreement between you and Netsurfer, Inc., a Georgia, U.S.A. corporation ("Netsurfer"). Upon acceptance of this license, Netsurfer grants to you, on the terms and conditions set forth herein, a limited, nontransferable, nonexclusive right to use the Software. "Software", for purposes of this Agreement, means the software program which will be electronically downloaded on your computer after acceptance of this Agreement and any upgrades, improvements or modifications furnished to you by Netsurfer and the Documentation. Documentation shall mean all documentation furnished to you by Netsurfer (whether in hard copy or electronic format).
2. Scope of Use. The Software may only be used only for, by and on your behalf to access Network resources including the World Wide Web, as further set forth in the Documentation. At any time, the number of concurrent users of the Software may not exceed the number set forth below. Such users may operate the Software on one or more networks and on one or more computers, however, the total number of concurrent users shall be limited to that number set forth below. The Software is in "use" when it is loaded into temporary memory (i.e., RAM) of any computer. An electronic key will be delivered when the Software is downloaded; the key will not permit operation of the Software if, at any time, the number of concurrent users of the Software exceeds the number authorized below.
3. Copies of the Software. You may make one copy of the Software on a floppy disk for archival and backup purposes. You may make only that number of copies of the Software on the hard disk of one or more computers as is reasonably necessary to exercise your express rights under this Agreement. You must reproduce and include any restrictive rights notices on each copy of the Software. All other copying is prohibited.
4. Ownership and Copyright. Title and full ownership rights, including copyright rights, to any and all copies of the Software remain with Netsurfer or its suppliers. The Software is protected by United States copyright laws and international and supranational treaty provisions.
5. Third Party Materials. Title, ownership rights, and intellectual property rights in and to third party materials accessed by use of the Software are the property of the respective owners and may be protected by applicable copyright or other law. This License gives you no rights to such materials. You agree to indemnify Netsurfer for all losses, costs, damages and expenses, including attorneys' fees, Netsurfer may incur due to your failure to abide by applicable copyright laws or other intellectual property laws of any country or any applicable export control laws.
6. Downloading Restrictions. You may not download the Software or any underlying information or technology except in full compliance with all United States and other applicable export laws and regulations. In particular, but without limitation, none of the software or underlying information or technology may be downloaded (i) into (or to a national or resident of) Cuba, Haiti, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By clicking on the Accept button or otherwise using the Software, you are agreeing to the foregoing and you are representing and warranting to Netsurfer that you are not located in, under the control of, or a national or resident of any such country or on any such list.
7. Term and Termination. This Agreement shall be effective until terminated by mutual consent, or by election of either you or Netsurfer in case of the other's unremedied material breach. Netsurfer shall further have the right to terminate this License immediately by written notice upon your violation of any applicable export control laws or copyright or other intellectual property laws. In case of any termination of this Agreement, you shall immediately cease using the Software and either destroy all copies of the Software and the Documentation or immediately return to Netsurfer each copy of the Software and the Documentation. In either event, you must also erase all copies of the Software from any storage device.
8. Limited Warranty.
a. Netsurfer does not warrant that the functions contained in the Software will meet your requirements or that the operation of the Software will be error free. Netsurfer warrants that, during the first ninety (90) days following downloading of the Software, the Software will perform substantially in accordance with the Documentation. Maintenance or support services will be provided by Netsurfer during the warranty period only as provided in Netsurfer's then current standard policies regarding maintenance and support. Netsurfer's sole obligation and liability, and your exclusive remedy, under this Section 8.a. shall be at Netsurfer's option to replace or correct the Software so that it substantially conforms to the Documentation, or to refund the payment for the Software upon return of the Software and the Documentation.
b. NO OTHER WARRANTY IS EXPRESSED OR IMPLIED AND NO WARRANTY OR CONDITION AS TO MERCHANTABILITY, FITNESS FOR USE FOR A PARTICULAR PURPOSE OR OTHERWISE SHALL BE IMPLIED. SOME STATES DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
c. Any (i) modification of the Software by any person other than Netsurfer, (ii) use of the Software with infringing software or data, (iii) failure to follow directions provided with the Software, or (iv) misuse or negligent operation of the Software, will void all of Netsurfer's duties under the warranty provisions of this Section 8. Netsurfer is not liable for any damage caused by any of the foregoing acts.
9. EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT SHALL NETSURFER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF DATA, PROFITS OR USE, OR FOR ANY, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES SUFFERED OR INCURRED BY YOU OR A THIRD PARTY ARISING OUT OF USE OF THE SOFTWARE OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF NETSURFER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NETSURFER BE LIABLE FOR ANY DAMAGES WHATSOEVER (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) IN EXCESS OF THE AMOUNT PAID TO NETSURFER BY YOU FOR USE OF THE SOFTWARE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF USE OF THE SOFTWARE OR THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
10. Software Protection. You agree that (A) you will not reproduce, deactivate, or bypass any security device supplied with the Software; (B) you will preserve and respect Netsurfer's copyright and the notices of copyright included in the Software; (C) the Software contains information which is confidential and proprietary to Netsurfer; (D) you will not disclose or transfer or otherwise provide to any third party all or any part of the Software without the express written consent of Netsurfer; (E) you will not disassemble, decompile or reverse engineer the Software or any portion thereof or otherwise attempt to discover the source code or structural framework of the Software, except to the extent applicable laws specifically prohibit such restriction and then only to the extent so permitted; (F) you will not rent or lease the Software; and (G) you will not modify the Software.
11. General Terms and Conditions. THE TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER ORDERING DOCUMENT ISSUED BY YOU IN CONNECTION WITH THIS AGREEMENT WHICH ARE IN ADDITION TO OR INCONSISTENT WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL NOT BE BINDING ON NETSURFER AND SHALL NOT BE DEEMED TO MODIFY THIS AGREEMENT. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY OR LIMITED WARRANTY IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. This Agreement represents the complete and exclusive statement of the agreements concerning the Software between the parties and supersedes all prior agreements and representations between you and Netsurfer; it may only be amended by a writing executed by both you and Netsurfer. In the event that any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be severed and the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect. This Agreement shall be governed by the laws of the State of Georgia, U.S.A. and shall inure to the benefit of Netsurfer, its successors and assigns. This Agreement and the Software may not be assigned by you to any party without the express written consent of Netsurfer. Sections 4, 5, 6, 9, 10, 11 and 12 shall survive any termination of this Agreement. All rights not specifically granted herein are reserved by Netsurfer. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
12. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation provided with the Software are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (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, or in similar clauses in the NASA FAR Supplement, as applicable. Manufacturer is Netsurfer, Inc., 430 10th Street, N.W., Suite N-105, Atlanta, Georgia, U.S.A. 30318.
13. Concurrent Users. The number of concurrent users permitted by this Agreement, as set forth in Section 2 above, is one (1) for a Single User License and five (5) for a Network Five-Pack License.
1995 Netsurfer, Inc. 04/95
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