End-User License Agreement

END-USER LICENSE AGREEMENT FOR MOBY CORP

IMPORTANT! READ CAREFULLY:

THIS END-USER LICENSE AGREEMENT (“EULA” or “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY RESIDENT IN THE UNITED STATES OF AMERICA (“USA”)) (“YOU”) AND MOBY CORP (“MOBY CORP”) FOR A TRIAL VERSION OF THE MOBY CORP PRODUCT, LATER REFERRED TO AS “THE SOFTWARE,” AS DEFINED BELOW. The Software under the Trial Version EULA is a fully functional time-limited version. A detailed description of the Trial Version restrictions is available on Moby Corp’s web site and in the Software user-guide, if available. The Software under this EULA is provided free of charge only while it is a TRIAL VERSION. “Trial Version” means a version of the Software to be used only to review, demonstrate and evaluate the Software for a minimum of 14 days, or as otherwise designated by Moby Corp . Any functional peculiarities present in the Trial Version will not be a reason for you to obtain a refund of a purchased license. YOU WILL BE REQUIRED TO ENTER INTO A SEPARATE LICENSE AGREEMENT IF YOU CHOOSE TO PURCHASE A FULL VERSION OF THE SOFTWARE.

1. AGREEMENT TO BE BOUND. By installing, copying, or otherwise using the Software, you agree to be bound by the terms of this EULA. This Agreement represents the entire agreement concerning the Software and associated subject matter between you and Moby Corp, and it supersedes any prior proposal, representation, or understanding between the parties. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, PLEASE DO NOT INSTALL OR USE THE SOFTWARE. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. Please note: the Software is not currently available for users located outside of the USA. IF YOU RESIDE IN ANOTHER COUNTRY, PLEASE DO NOT DOWNLOAD THE SOFTWARE.

2. DEFINITIONS. When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:

  1.  ”Software” means (i) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided, including but not limited to (A) registration information, i.e. license key which is unique for your registration name; (B) related explanatory written materials or files (“Documentation”); and (C) Software setup files and code samples (if any); and (ii) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by Moby Corp (collectively, “Updates”).
  2.  ”Use” or “using” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.

PRIVACY POLICY. You are required to provide your personal information to download the Trial Version of the Software. Moby Corp’s collection and use of personal information is governed by the Moby Corp Privacy Policy on Mobycorp.com, the terms of which are incorporated into and are a binding part of this EULA. Without limiting the rights and obligations set forth in the foregoing Privacy Policy, you understand and agree that Moby Corp may access, preserve, and disclose your personal information and the contents of your account if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to comply with legal process or protect the rights, property and/or safety of Moby Corp, its affiliates or the public. Personal information collected by Moby Corp may be stored and processed in any state in the USA or any other country in which Moby Corp maintains facilities. By establishing an account with Moby Corp, you consent to any such transfer of information outside of your state or country.

3. LICENSE GRANT. Subject to your compliance with this EULA, Moby Corp grants you a non-exclusive, limited, revocable, non-transferable license to use the Software solely as follows:

  1. You must reside or be domiciled in the USA:
  2. The Software must be installed on a validly licensed copy of an operating system;
  3. You must use the Software for legal purposes only and in compliance with all applicable laws, including, without limitation, copyright and data protection laws;
  4. The Software may be installed and used by you for the sole purpose of determining whether to purchase a license for a commercial version of the Software;
  5. The Software may be installed and used by you on any number of systems;
  6. You may copy and distribute the Software to any third-party; provided, however, that you must distribute a complete, unaltered version of the Software for free. Without limiting the foregoing, you may not tamper with or disable, or otherwise alter the EULA included with copies of the Software you distribute, nor, as more particularly set forth below, may you indicate in any way to any third-party that you are an agent, employee, or contractor, or in that you in any way represent Moby Corp or its affiliates;
  7. Without limiting the foregoing, you may not rent, lease, or sell the Software to anyone, nor otherwise directly benefit financially from your use or distribution of the Software;
  8. You may not transfer any or all of your rights in this Agreement, except as set forth in Section 4(e);
  9. You may make a single back-up copy for archival purposes; and
  10. Without prejudice to any other rights, and in addition to any other termination rights herein, Moby Corp may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the Software in your possession.

4. LICENSE RESTRICTIONS. You acknowledge and agree to the following restrictions on your use of the Software under this EULA:

  1. You understand and agree that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, links or other materials (“Content”) uploaded to or transmitted via the Software, are the sole responsibility of the person from whom such Content originated. This means that you, and not Moby Corp, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Software. Without limiting or expanding the license grant set forth above, the following are considered “Prohibited Conduct” and you agree not to use the Software for such purposes. Further, The following are considered “Prohibited Conduct”:

i. Uploading, posting, emailing, transmitting or otherwise making available any Content that is illegal, which includes, without limitation, Content that is libelous, that infringes a third-party’s trademark, trade secret, copyright or other proprietary rights that intentionally or unintentionally violating any applicable local, state, national or international law and any regulations having the force of law;

ii. Without limiting the foregoing, uploading, posting, emailing, transmitting or otherwise making available any Content that is harmful, threatening, abusive, harassing, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

ii. Posting Content intended to or that actually does harm minors in any way;

iv. Impersonating any person or entity or falsely stating or otherwise misrepresenting your affiliation with a person or entity;

v. Forging headers or otherwise manipulating identifiers in order to disguise the origin of any Content transmitted through the Software;

vi. Uploading, posting, emailing, transmitting or otherwise making available any Content that you do not have a right to make available under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

vii. Uploading, posting, emailing, transmitting or otherwise making available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose;

viii. Uploading, posting, emailing, transmitting or otherwise making available any material 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;

ix. Interfering with or disrupting the Software or servers or networks connected to the Software, or disobeying any requirements, procedures, policies or regulations of networks connected to the Software, including using any device, software or routine to bypass robot exclusion headers;

x. “Stalking” or otherwise harass another; and/or

xi. Collecting or storing personal data about other Software users in connection with the prohibited conduct and activities set forth in the paragraphs above.

  1. You acknowledge that Moby Corp will not, in the customary course of its business, access or read the Content you upload, post, email, transmit or otherwise make available via the Software, but that Moby Corp and its designees shall have the right, in their sole discretion to access such Content in order to protect Moby Corp and fulfill its legal obligations. Moby Corp may refuse to store or transmit, or may delete, any Content that is available via the Software that, in its sole discretion, violates this EULA, including Content that is or contains Prohibited Conduct.
  2. You acknowledge, consent and agree that Moby Corp may also access, preserve and disclose your account information and Content as set forth in the Moby Corp Privacy Policy.
  3. You understand that the Software and any files or processes embodied within the Software may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Moby Corp and/or content providers who provide content to the Moby Corp. You may not attempt to override or circumvent any of the usage rules embedded into the Software.

5. INTELLECTUAL PROPERTY RIGHTS

  1. This License does not transfer any intellectual property rights in or to the Software from Moby Corp to you. The Software and any copies that the you are authorized by Moby Corp to make under this Agreement are the intellectual property of and are owned by Moby Corp and/or its licensors and suppliers;
  2. Any copies that the you are is permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software as provided by Moby Corp;
  3. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Moby Corp and its suppliers and licensors. You agree not to decompile, disassemble or otherwise attempt to discover the source code of the Software, except as explicitly permitted by law;
  4. You are not authorized to use any plug-in or enhancement that permits you to save modifications to a file with Software licensed and distributed by Moby Corp;
  5. Any information supplied by the Moby Corp or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software;
  6. Trademarks of Moby Corp shall be used in accordance with accepted trademark practice, including identification of trademarks owners’ names. Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that trademark.

6. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) COMPLIANCE : NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT.

  1. In providing the Software, and the network to which the Software may connect, Moby Corp may be considered a “service provider” of “conduit communications” as described in the Copyright Act, Section 512, in particular, with regard to transitory digital communications (including Content therein) transmitted via the Software by users over whom Moby Corp has no control. As more particularly described herein, Moby Corp may delete Content that violates the copyright of third-parties and/or revoke the EULAs of those who may be repeat infringers. Moby Corp will respond expeditiously to remove or disable access to material we determine may be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the applicable Content.
  2. If you believe that your work or the work of a third-party has been copied in a way that constitutes copyright infringement, or yours or a third-party’s intellectual property rights have been otherwise violated, please provide Moby Corp’s Copyright Agent the following information:

i. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
ii. a description of the copyrighted work or other intellectual property that you claim has been infringed;
iii. a description of how you became aware of the infringement and where the Content originated and/or is located on our networks ;
iv. your address, telephone number, and email address;
v. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
vi. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

  1.  Moby Corp’s Copyright Agent can be reached as follows:
    By Mail
    Moby Corp Copyright Agent
    524 2nd Ave #500
    Seattle, WA 98104
    By email: support@mobycorp.com

7. THIRD-PARTY ADVERTISEMENTS. The Trial Version of the Software may contain third-party advertisements. Without limiting the disclaimer of liability below, you acknowledge and agree that Moby Corp is not responsible for the content of such third-party advertisements, nor your choice of whether to click-through or purchase any goods or services from such advertisers. Moby Corp does not endorse or support the goods and services promoted in the third-party advertisements, and makes no representations or warranties about their function, appropriateness for your use or any other characteristic or claim made by or about such third-party advertisers and their goods and services.

8. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED ‘AS IS’ AND MOBY CORP EXPRESSLY DISCLAIMS ANY WARRANTIES ASSOCIATED WITH OR RELATING TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS OF A PARTICULAR PURPOSE. MOBY CORP DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR WITHOUT INTERRUPTION, NOR THAT ANY ERRORS WILL BE CORRECTED. MOBY CORP DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY CONTENT CONTAINED WITHIN THE SOFTWARE. MOBY CORP MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB, OR OTHER SUCH COMPUTER PROGRAM. MOBY CORP FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO USERS OF THE SOFTWARE OR TO ANY THIRD PARTY. MOBY CORP DOES NOT AND CANNOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE POSSIBLE OUTCOMES OR BENEFITS YOU MAY OBTAIN BY USING THE SOFTWARE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.

9. LIMITATION OF LIABILITY. In no event shall Moby Corp be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of your or any third-party’s use of or inability to use the Software, even if Moby Corp has been advised of the possibility of such damages. In no event will Moby Corp be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. Moby Corp shall have no liability with respect to the content of the Software or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information.

10. TERMINATION. Without prejudice to any other rights, Moby Corp may suspend your use of the Software or terminate this Agreement at any time, with or without cause. Upon termination of this EULA, you (a) acknowledge and agree that all licenses and rights to use the Software shall terminate, and (b) will cease any and all use of the Software, (c) you will remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control. You may terminate this EULA with immediate effect at any time, with or without cause and without recourse to the courts, provided that you will meet with the conditions required upon termination of the EULA, as set forth in the immediately preceding sentence.

11. NON-WAIVER. If a portion of this Agreement is held unenforceable, the remainder shall be valid. This means that if one section of the Agreement is not lawful, the rest of the Agreement is still in force. A party’s failure to exercise any right under this Agreement will not constitute a waiver of (a) any other terms or conditions of this Agreement, or (b) a right at any time thereafter to require exact and strict compliance with the terms of this Agreement.

12. MISCELLANEOUS. You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by Moby Corp to show your approval of any foregoing texts, you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into this EULA and to the electronic delivery of notices, policies and other materials or information. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. This EULA is governed by the laws of the State of Delaware without regard to its conflict of law provisions, and each of the parties agree to submit to the personal and exclusive jurisdiction of the appropriate courts located within the State of Delaware