MOBILE USE LICENSE AGREEMENT
This Mobile Use License Agreement (this “Agreement”) is a legal contract between you and ContentWatch, Inc., doing business as Net Nanny (“Net Nanny“, “we”, “our”), governing your use of the content filtering software owned, controlled or offered by Net Nanny (the “Net Nanny Software”).
THIS AGREEMENT GOVERNS YOUR USE OF THE NET NANNY SOFTWARE, PLEASE READ IT CAREFULLY. BY USING THE NET NANNY SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CEASE USING THE NET NANNY SOFTWARE IMMEDIATELY IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT.
1. LICENSE GRANT
The Net Nanny Software is licensed (not sold) to you. Subject to the terms of this Agreement, Net Nanny grants you a personal, non-exclusive, non-transferable and non-sublicensable license to use the Net Nanny Software during the term of this Agreement. The license granted under this Agreement is a per-seat license which may be used on one mobile device per seat purchased from Net Nanny or its authorized Distributors. The term of this Agreement shall begin on the date of your initial purchase of the Net Nanny Software, and shall, subject to early termination provided for in Section 10, last for the period of time set forth in the applicable documentation from Net Nanny or from the authorized Distributor from which you obtained the Net Nanny Software. Upon completion of the term of this Agreement, the license granted under this Agreement will terminate and you will have no right, title, license or interest in the Net Nanny Software. With respect to any open source code that may be incorporated in the Net Nanny Software, such open source code is covered by the applicable open source code license agreement. Without limiting the generalities of the foregoing, certain open source code incorporated in the Net Nanny Software is subject to the terms of the Mozilla Public License, v. 2.0, which Mozilla Public License is available at http://www.mozilla.org/MPL/2.0/. You may request a copy of the open source code incorporated in the Net Nanny Software that is subject to the terms of the Mozilla Public License, v. 2.0.
2. RESERVATION OF RIGHTS
The Net Nanny Software and all content, visual interfaces, information, graphics, design, compilation, computer code, products, software, trademarks, service marks, trade names and services are the property of Net Nanny or its subsidiaries or affiliated companies and/or third-party licensors. Except for the license expressly granted to you in this Agreement, no right, title, interest or license to the Net Nanny Software is granted to you, whether by implication, estoppel or otherwise.
You acknowledge and agree that you will not: (a) use the Net Nanny Software for any illegal purpose, or in violation of any laws, including, without limitation, laws governing intellectual property, data protection and privacy, and import or export control; (b) copy or reproduce or attempt to copy or reproduce any portion of the Net Nanny Software; (c) attempt to modify, adapt or translate the Net Nanny Software or attempt to create any derivative works of the Net Nanny Software; (d) attempt to remove, circumvent, disable, damage or otherwise interfere with the Net Nanny Software or any technology or feature in the Net Nanny Software by any means or in any manner, including, without limitation, removing, circumventing, disabling, damaging or otherwise interfering with any security-related features of the Net Nanny Software, including features that prevent or restrict use or copying of any content accessible through the Net Nanny Software or features that enforce limitations on use of the Net Nanny Software; (e) interfere with or damage operation of the Net Nanny Software or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code; (f) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code or accompanying encrypted data for the Net Nanny Software; (g) use any robot, spider, scraper or other automated means to access the Net Nanny Software; (h) distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish or disclose the Net Nanny Software to any third party; (i) commercialize or attempt to commercialize use of the Net Nanny Software; (j) sell or transfer or allow another person to access your account password or Net Nanny account; or (k) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Net Nanny Software or used in connection with the Net Nanny Software.
5. MODIFICATION OF THIS AGREEMENT
Net Nanny may modify the terms of this Agreement from time to time in its sole discretion. Any and all modifications to this Agreement will be posted on Net Nanny’s website, and you agree to be bound by any such modifications to the terms of this Agreement when you continue to use the Net Nanny Software after those changes are posted.
6. REGISTRATION INFORMATION
You agree that the information you provide to Net Nanny upon registration and at all other times will be true, accurate, current and complete. You also agree that you will ensure that this information, including, without limitation, all information relating to your registration is kept accurate and up to date at all times. Net Nanny will not be liable for any damages or liability resulting from your registration information being incomplete or inaccurate.
7. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
The Net Nanny Software may include links to other web sites or services solely as a convenience to its users. Net Nanny does not endorse or make any representations regarding any such linked sites or the any information or materials accessible through other linked sites. Net Nanny disclaims all liability relating to your use of such linked sites.
8. GOVERNMENT END USERS.
If the Net Nanny Software is being acquired on behalf of the United States Government, then the following provision applies: Use, duplication, or disclosure of the Net Nanny Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
9. EXPORT CONTROL.
The Net Nanny Software originates in the United States, and is subject to United States export laws and regulations. The Net Nanny Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Net Nanny Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Net Nanny Software.
10. VIOLATIONS; TERMINATION
You agree that Net Nanny may terminate or suspend your license to use the Net Nanny Software without prior notice and without liability if such termination or suspension is based on (a) Net Nanny’s good faith belief you have violated any of the terms and conditions of this Agreement, (b) Net Nanny’s determination that you repeatedly infringe or have infringed the copyrights of others (including Net Nanny), (c) extended periods of inactivity with respect to any of the Net Nanny Software or (d) nonpayment of any fees owed to Net Nanny. These remedies are in addition to any other remedies Net Nanny may have at law or in equity.
11. DISCLAIMERS; NO WARRANTIES
THE NET NANNY SOFTWARE AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONNECTION WITH THE NET NANNY SOFTWARE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NET NANNY, AND ITS SUPPLIERS, DISTRIBUTORS AND PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NET NANNY AND ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE NET NANNY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE NET NANNY SOFTWARE IS FREE OF HARMFUL COMPONENTS OR THAT THE NET NANNY SOFTWARE WILL MEET YOUR REQUIREMENTS. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR EQUIPMENT OR DEVICE, LOSS OF USE, OR LOSS OF DATA.
12. INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify, defend, and hold harmless Net Nanny, its affiliated companies, and its suppliers and partners from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, arising out of or related to (a) your use or misuse of the Net Nanny Software, (b) any violation of the rights of any other person or entity by you, or (c) any breach or violation by you of this Agreement. Net Nanny reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
13. LIMITATION OF LIABILITY AND DAMAGES
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NET NANNY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, DISTRIBUTORS OR THIRD-PARTY PARTNERS OR SUPPLIERS WILL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATING TO YOUR USE OF THE NET NANNY SOFTWARE, EVEN IF NET NANNY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL NET NANNY’S (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR THIRD-PARTY PARTNERS INCLUDING, WITHOUT LIMITATION, NET NANNY’S WIRELESS CARRIER PARTNERS’) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU FOR USING THE NET NANNY SOFTWARE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE THOUSAND DOLLARS, WHICHEVER IS GREATER.
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous oral or written understandings.
This Agreement will be governed by the laws of the State of Utah, without regard to conflicts of law provisions. You hereby consent to the exclusive jurisdiction of the state and federal courts sitting in Salt Lake County, Utah in all disputes arising out of or relating to this Agreement or your use of the Net Nanny Software. If any provision of this Agreement should be held invalid or unenforceable by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no such modification is possible, and other provisions of this Agreement will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by Net Nanny without restriction. The provisions of this Agreement that require or contemplate performance after the termination of this Agreement and all provisions relating to limitation of liability, disclaimers, and indemnification will be enforceable notwithstanding such termination. Neither party will be in default or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. If any dispute arises under this Agreement, the prevailing party will be reimbursed by the other party for any and all legal fees and costs associated therewith.