END USER LICENSE AGREEMENT
THIS IS A LEGALLY BINDING CONTRACT. PLEASE READ THESE TERMS CAREFULLY.
THESE TERMS GOVERN YOUR USE OF A SOFTWARE, KOWN AS ELITE TOOLBAR, hereinafter the “SOFTWARE”. YOUR ACCEPTANCE OF THESE TERMS WILL CONSTITUE A BINDING LEGAL CONTRACT BETWEEN YOU AND ENTERNET MEDIA, HEREINAFTER “ENTERNET MEDIA”. IF YOU DOWNLOAD, INSTALL AND/OR ACCEPT THESE TERMS BY CLICKING/CHOOSING ‘ACCEPT’ VIA ANY INTERFACE, YOU ARE ACKNOWLEDGING YOUR CONSENT TO BE BOUND BY THE TERMS DETAILED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL AND/OR DOWNLOAD THE SOFTWARE.
When the SOFTWARE is installed, a toolbar will appear at the top of your Internet browser. This Toolbar will contain various hyperlinks to third-party websites, in addition to providing other resources and utilities, which may change from time to time at ENTERNET MEDIA’S discretion. Such resources and utilities, may include, without limitation, an online advertisement application, via which you will receive advertisements at various intervals.
1. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
ENTERNET MEDIA owns all intellectual property in the SOFTWARE, including without limitation rights available under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, amendments and/or extensions thereof, now or hereafter in force and effective worldwide. ENTERNET MEDIA permits you to use the SOFTWARE only in accordance with the terms detailed herein. Use of some third party materials included in the SOFTWARE, if any, may be subject to other terms and conditions found in a separate agreement.
ENTERNET MEDIA will remain the owner of all rights, titles and interests in the SOFTWARE.
2. LICENSE
As long as you comply with the terms detailed herein, ENTERNET MEDIAY grants to you a non-exclusive, non-transferable, revocable, restricted license to use the SOFTWARE for the purposes described herein, (in binary executable form only). All rights to use the SOFTWARE are granted on condition that such rights are forfeited if you fail to comply .
The license granted to you shall contain, without limitation, the following restrictions, in addition to any other restrictions detailed herein:
a. The SOFTWARE may be installed on no more than one (1) computer.
b. You may make one backup copy of the SOFTWARE, provided your backup copy is not installed on any computer, including the initial computer where you installed the SOFTWARE. In the event that the original installation of the SOFTWARE becomes corrupted or otherwise deleted, you may install and use your one (1) backup copy. Any copy of the SOFTWARE will be bound by all the terms detailed herein.
c. As otherwise stated above, you shall not copy the SOFTWARE.
d. The SOFTWARE is for personal, non-commercial use only.
3. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
The Software and any authorized copies that you make are the intellectual property of and are owned by ENTERNET MEDIA. The structure, organization and code of the SOFTWARE are the valuable trade secrets and confidential information of ENTERNET MEDIA. The SOFTWARE is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, these terms do not grant you any intellectual property rights in the SOFTWARE and all rights not expressly granted are reserved by ENTERNET MEDIA.
ENTERNET MEDIA will remain the owner of all rights, titles and interests in the SOFTWARE.
4. RESTRICTIONS
In addition to any other restrictions detailed herein, including without limitation Section 2, you will also comply with the following:
a. You agree that the SOFTWARE will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws").
b. You will not alter, modify, adapt, improve, translate or plagiarize the SOFTWARE, in any way.
c. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the SOFTWARE.
d. You may not, rent, lease, sublicense, assign or transfer your rights in the SOFTWARE.
e. You may not delete, modify or obscure any proprietary notices (including copyright notices) contained in the SOFTWARE.
5. NO WARRANTY
The SOFTWARE is being delivered to you "AS IS" and ENTERNET MEDIA makes no warranty as to its use or performance. ENTERNET MEDIA DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, ENTERNET MEDIA MAKES NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY
IN NO EVENT WILL ENTERNET MEDIA BE LIABLE TO YOU FOR ANY DAMAGES SUCH AS, WITHOUT LIMITATION, LOSS OF DATA, INVASION OF PRIVACY, INVASIVENESS OR ANY OTHER DAMAGE WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, , EVEN IF ENTERNET MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. ENTERNET MEDIA’S AGGREGATE LIABILITY SHALL BE LIMITED TO TEN DOLLARS ($10.00) OR THE AMOUNT PAID FOR THE SOFTWARE, IF ANY, WHICHEVER IS GREATER.
7. INDEMNIFICATION
You agree to indemnify and hold ENTERNET MEDIA, its licensors, successors, assigns, subsidiaries, affiliates, officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third-party due to or arising out of your failure to comply with the terms detailed herein or your violation of any applicable law, rule or regulation, or your infringement of the rights of any other party, in connection with your use of the SOFTWARE.
8. THIRD-PARTY SOFTWARES
The SOFTWARE may include tools and resources as provided by third-parties, or the SOFTWARE may include hyperlinks to third-party websites, webpages or Internet resources. Any such third-party tools, resources, website, webpage or Internet resource are not under the control of ENTERNET MEDIA and ENTERNET MEDIA shall not be responsible or liable in any manner whatsoever.
9. TERM AND TERMINATION
As long as the SOFTWARE remains installed on your computer, you affirm to ENTERNET MEDIA that you agree to be bound by its terms. In the event that you uninstall and completely remove the SOFTWARE from your computer, you will remain bound by the relevant sections of this license agreement.
You may uninstall the SOFTWARE by following the instructions available on ENTERNET MEDIA’s web site at http://www.yupsearch.com/uninstall.exe.You may uninstall the ISP by following the instructions available on ISP’s web site at http://www.surfya.com/techsupport/remove.exe.
ENTERNET MEDIA may terminate this license agreement at any time, for any reason. ENTERNET MEDIA may or may not notify you prior to any such termination.
10. CHILDREN’S PRIVACY
IF YOU ARE UNDER 13 YEARS OF AGE AND LIVE IN THE UNITED STATES, YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. ENTERNET MEDIA DOES NOT PROMOTE OR OTHWERWISE MARKET ITS SOFTWARE TO CHILDREN UNDER THE AGE OF 13. FOR MORE INFORMATION PLEASE VISIT http://www.ftc.gov/bcp/conline/edcams/kidzprivacy/index.html
11. UPDATES
ENTERNET MEDIA may, from time to time, provide updates, upgrades or modifications to the SOFTWARE. You hereby allow ENTERNET MEDIA to provide such updates, upgrades and/or modifications as it sees fit, without notice to you, including, without limitation, new tools, resources and applications. Any update, upgrade or modification of the SOFTWARE shall be bound by the terms herein.
12. SERVER INTERACTION
You hereby understand and acknowledge that the SOFTWARE, from time to time, will communicate with a server, under the control or ownership of ENTERNET MEDIA or a third-party affiliate.
13. PRIVACY AND INFORMATION COLLECTED ABOUT YOU
Each copy of the SOFTWARE contains a unique identifying code. The SOFTWARE will collect and store various types of information, such as your Internet surfing habits, including websites you visit, buttons you click on the toolbar, various advertisements you click and view, your Internet search keywords, and other such Internet surfing information. Furthermore, ENTERNET MEDIA may, from time to time, ask you for personal information such as your name, address, email address, zip code, and telephone number. You hereby understand that ENTERNET MEDIA may share such personally-identifiable information provided to it voluntarily by you, in addition to non-personally identifiable information (such as your Internet surfing habits) collected by the SOFTWARE, with third-party companies. Nothing in this Section shall override or supersede Section 10.
14. ISP PROVISIONS
The ISP Provisions of this license agreement is only in effect once you install its components and only remains in effect until it is terminated. You may terminate it at any time by eliminating the components of the Software in your possession. You agree on termination of this license to destroy all copies of the Software in your possession.. You may uninstall the ISP service by following the instructions available on ISP’s web site at http://www.surfya.com/techsupport/remove.exe.
15. GENERAL PROVISIONS
These terms will be governed by and construed in accordance with the laws of the State of California, County of Los Angeles, without giving effect to the conflict of laws provisions of California or your actual state or country of residence.
If for any reason a court of competent jurisdiction finds any provision or portion of these terms to be unenforceable, the remainder of these terms will continue in full force and effect.
These terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
Any waiver of any provision of these terms will be effective only if in writing and signed by ENTERNET MEDIA.
July, 2004