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 This is a legal contract between you and Broadspring-Sabet Ventures LLC (hereinafter "Mojizu", "we", "us" or "our"). You must agree to this contract and abide by its terms in order to download and use the Mojicon Dispenser (the "Software"). You must be 18 years of age to agree to this contract and download this product. IF YOU ARE NOT YET 18, PLEASE ASK YOUR PARENT OR GUARDIAN TO DOWNLOAD THE MOJICON DISPENSER FOR YOU. By agreeing to this contract, Mojizu will install the Software onto your computer. By Downloading the Software from Mojizu, you agree to the following terms:
1. License Grant (what you may do):
Subject to the terms and conditions of this Agreement, Mojizu grants you a free of charge, non-exclusive, non-sublicensable, non-assignable, revocable, limited license, to (a) download and install the most current generally available version of the Software (including all updates thereto), and (b) use the Software you download and install solely for your personal, non-commercial purposes, and (c) use the Content (as defined below), including, without limitation, any and all character art, emoticons and/or "Mojis" accessible on or through the Software, solely (i) for your personal, non-commercial purposes, and (ii) in connection with your use of any e-mail and/or instant messaging software.
2. License Conditions (what you are not allowed to do):
You may not: (a) copy (other than a single copy for your own backup purposes), rent, sell, lease, sublicense, distribute, assign, or in any way transfer the Software or use the Software for the benefit of any third party through any outsourcing or time-sharing arrangement or through the operation of any service bureau; (b) install the Software on any computer that is not yours unless you have permission from the owner of that computer; (c) modify, decompile, disassemble, hack or otherwise discover the Software, or attempt to do so for any reason; (d) access, create or modify the source code of the Software in any way; (e) undertake, cause, permit, or authorize the creation of derivative works or translations of the Software; (f) use any automatic or manual device or process to interfere or attempt to interfere with the proper working of any of the Software, except to remove the Software from a computer of which you are an owner or authorized user in a manner permitted by this Agreement; or (g) use, transmit, distribute, upload or otherwise display any Content accessible on or through the Software, including, without limitation, any character art or "Mojis", on any commercial website or any in any other medium intended for commercial purposes or any other purpose than that which is expressly permitted hereunder. By downloading the Software, you acknowledge and agree that all modifications or enhancements to the Software shall remain the sole property of Mojizu. You understand that Mojizu, in our sole discretion, may modify or discontinue or suspend your right to access any of our services or use the Software at any time, and we may at any time suspend or terminate any license hereunder and disable the Software or any of its component features.
3. Third Party Software
You acknowledge and agree that the Software may incorporate software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the Software will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you will not enter into a contractual relationship with Mojizu and its affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to Mojizu or its affiliates to enforce any of your rights.
4. Updates
Mojizu in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Software. You acknowledge and agree that Mojizu has no obligation to make available to you any subsequent versions of the Software. You also agree that you may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the Software. Furthermore, you acknowledge and agree that Mojizu, in its sole discretion, may modify or discontinue or suspend your ability to use any version of the Software, and/or disable any Software you may already have accessed or installed without any notice to you, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where you, at Mojizu’s sole discretion, are in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons. Mojizu will not accept any liability in relation to the direct or indirect damages caused by (1) the release and/or the absence of release of new versions of the Software and (2) by the suspension or termination of the license or this Agreement by Mojizu and/or by you.
5. Content
You understand that all content, including, without limitation, all data, links, articles, search results, graphic or video messages and all information, text, software, music, sound, graphics or other materials, including emoticons or so-called "Mojis" (collectively, the "Content") made available or accessible through the Software, whether publicly available or privately transmitted, is the sole responsibility of the entity from whom it originated. Mojizu is not responsible for any Content such as audio, video, text, image, or any other files owned by users of the Software. You understand and agree that by using the Software, such as by clicking through to a third-party website by following a search results link, you may be exposed to Content that may be offensive, indecent or objectionable in your community. You agree to accept all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content. Under no circumstances will Mojizu be liable, directly or indirectly, in any way for any Content created by or originating with entities other than Mojizu, including, but not limited to, any errors or omissions in any such Content, or for loss or damage of any kind incurred as a result of the transmission or posting of such Content by means of the Software. In addition, in the event you post or upload image content to Mojizu, you should be aware that we do not store any backup images. You acknowledge and agree that you are solely responsible for creating back ups of image content that you upload and share.
6. Security
Although Mojizu shall use commercially reasonable efforts to protect the privacy and integrity of the computer resources you are utilizing as well as your communications through the use of the Software, you understand and agree that the Software provided by Mojizu is unsecured, and can be potentially intercepted by third parties. This means that the Software, and any information you download or use by means of the Software, may be exposed to unauthorized access, interception, corruption, damage or misuse, and should be regarded as insecure. You accept all responsibility for such security risks and any damage resulting therefrom. In addition, you agree that it is your responsibility to install anti-virus software and related protections against viruses, trojan horses, worms, time bombs, cancelbots or other techniques that may have the effect of damaging, destroying, disrupting or otherwise impairing a computer's functionality or operation.
7. Ownership
You do not own the Software that you have downloaded from Mojizu. You acknowledge and agree that the Software is licensed, not sold to you by Mojizu. You acknowledge that the Software, including all code, content, protocols, software, and documentation provided to you by Mojizu in conjunction with the Software or our services are Mojizu's property or the property of Mojizu's licensors, and are protected by U.S. and international copyright, trademarks, patents, trade secrets and other proprietary rights and laws relating to intellectual property rights including, without limitation, moral or similar rights. You further acknowledge and agree that any unauthorized use of the Software, or any Content (including character art or "Mojis") accessed on or through the Software, is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright and trademark laws. You may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice that Mojizu has placed on the Software. All rights not expressly granted hereunder are expressly reserved to Mojizu and its licensors.
8. Installation, Operation and Removal.
The Software that Mojizu will install on your computer will deliver the following content rich features for your enjoyment: The Software does not collect any personal information about you (such as your name, email address, etc.). Further, the Software does not: (a) collect or report back to us (or anyone else) any information about sites you visit on the Internet; (b) collect or "screen-scrape" any search queries or information that you provide to any other web sites; (c) serve pop-ups when you are on other websites; or (d) collect or report back to us (or anyone else) any data regarding your computer keystrokes or other data unrelated to the services the Software provides. Our servers do track the types of Mojicons selected through the Software, however, this information is tracked on an aggregate basis and does not identify your IP Address or other information about you. More information on our use of personally identifiable information can be found in our Privacy Policy at http://www.mojizu.com/Pages/privacy.aspx. The Software, in the course of processing a given search query, sends a request to our servers. This request includes the keyword query, time of day, browser type, default language setting, IP address, an anonymous unique ID, and a code which identifies the distribution source of the Software used by you to conduct your search. Importantly, all information collected from a search query is recorded on a non-personally identifiable basis. In addition, all information about search activity is evaluated only on an aggregated basis (excepted in response to a customer service inquiry or legal process), and we do not disclose any non-aggregated information to third parties, except as required by a valid legal process such as a search warrant, subpoena, statute, or court order, or to protect someone's safety. The Software also uses "cookies". We do this for two reasons. First, we use the cookies to store a code designating a distribution source for the Software. This information allows us to properly distinguish Software for purposes of compensating third parties who distribute our product and to analyze retention and usage on an aggregated basis. Second, the Software uses cookies to store user preferences. For example, we use a cookie to record which search engine or search engine service you have selected as your default provider. We do not use cookies to track your use of the Internet in any other way or to store any personally-identifiable information, and we do not disclose cookie information to third parties, except as required by a valid legal process such as a search warrant, subpoena, statute, or court order or to protect someone's safety. If you wish to withdraw your consent to the communication and data usage as described herein, you should uninstall the Software from your computer. You may uninstall or remove the Software at any time by following the Add/Remove Feature in Microsoft Windows.
9. Privacy Policy
Mojizu is committed to respecting your privacy and the confidentiality of your personal data. The "Privacy Policy" that is published on the Mojizu website at http://www.mojizu.com/Pages/privacy.aspx applies to the use of your personal data, the traffic data as well as the content contained in your communication(s). We do not sell or rent your personal information to third parties for their marketing purposes without your explicit consent and we use your information only as described in the Privacy Policy. We store and process your information on computers that may be located outside your country that are protected by physical as well as technological security devices. You can access and modify the information you provide in accordance with the Privacy Policy. If you object to your information being transferred or used in this way please do not use our services.
10. Your Representations, Warranties and Covenants
You represent, warrant and covenant that: (a) you are either the owner or an authorized user of the computer where the Software is to be installed; (b) you are authorized to enter into this Agreement and comply with its terms; (c) you will at any and all times meet with your obligations hereunder, as well as any and all laws, regulations, rules, and policies that may apply to the use of the Software; (d) you agree not to use the Software or any other services provided by Mojizu to conduct any business or activity or solicit the performance of any activity, including any activity which is prohibited by law, or any contractual provision by which you are bound; (e) you will not use any type of spider, virus, worm, trojan-horse, time bomb, cancelbots or any other codes or instructions that are designed to distort, delete, damage, or disassemble the Software and you shall not attempt to violate the security of our services; and (f) you shall not expose any other user to material which is offensive, harmful to minors, indecent or otherwise objectionable.
11. Term and (Consequences of) Termination
This Agreement shall be effective as of the date you click on the "Accept" button appearing below, and will remain effective until terminated by Mojizu or you as setforth below. Without limiting other remedies, Mojizu, in its sole discretion and at any time, may limit, suspend, or terminate this license and your use of Software and prohibit access to the Mojizu website, with immediate effect, with or without notice, if we think that you are in breach of this Agreement, are creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. Mojizu may also in its sole discretion and at any time, terminate this Agreement by providing notice of termination to you at the email address you have provided. You may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts. Upon termination of this Agreement by Mojizu or you, you (a) acknowledge and agree that all licenses and rights to use the Software shall terminate, (b) you will cease any and all use of the Software, and (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 further acknowledge and agree that Mojizu will not be liable in relation to any damage caused by the termination of this Agreement.
12. Disclaimer of Warranty
YOUR ACCESS AND USE OF THE SOFTWARE AND SERVICES AND ANY CONTENT AVAILABLE THROUGH OUR SOFTWARE, SERVICES OR ON OUR WEBSITE IS AT YOUR SOLE RISK. WE PROVIDE THE SOFTWARE ON AN "AS IS," AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES OR CONTENT PROVIDED BY THIRD PARTIES ACCESSIBLE ON OR THROUGH OUR SOFTWARE OR OUR SERVICES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE FROM A THIRD PARTY IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NEITHER WE NOR OUR DIRECTORS, OFFICERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, CONTRACTORS, THIRD PARTY VENDORS, FACILITIES, INFORMATION PROVIDERS, LICENSORS, NOR ANY EXCHANGES, CLEARING ORGANIZATIONS OR OTHER SUPPLIERS PROVIDING DATA, INFORMATION, OR SERVICES (EACH A "PROVIDER") MAKE ANY REPRESENTATION OR WARRANTY: (A) AS TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF THE SOFTWARE OR MOJIZU'S SERVICES OR ANY INFORMATION, SERVICE OR TRANSACTION PROVIDED THEREBY, (B) THAT THE SOFTWARE OR MOJIZU'S SERVICES WILL BE AVAILABLE OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, (C) THAT ERRORS OR DEFECTS RELATED TO THE SOFTWARE OR THE SERVICES WILL BE CORRECTED, OR (D) THAT WE WILL RECOGNIZE ANY OCCURRENCE OF IDENTITY THEFT. WE ALSO DO NOT WARRANT THAT THE SOFTWARE OR THE SERVICES OR THE INFORMATION AVAILABLE THROUGH THE SERVICES, IS APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION. PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM MOJIZU PERSONNEL OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE. AS SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS AS SET FORTH ABOVE, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH EVENT THE LIABILITY WILL BE LIMITED AS FAR AS LEGALLY POSSIBLE UNDER THE APPLICABLE LEGISLATION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
13. Limitation of Liability
The Software is being provided to you free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT MOJIZU, ITS AFFILIATES, OR THEIR EMPLOYEES, DISTRIBUTORS, SUPPLIERS, MERCHANT PARTNERS, ADVERTISERS, DIRECTORS OR AGENTS (EACH A "PROTECTED PARTY", COLLECTIVELY, "PROTECTED PARTIES") WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE SOFTWARE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE PROTECTED PARTIES BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER FORM OF LIABILITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, INTERRUPTION, COMPUTER FAILURE, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, GOODWILL, OR OTHER INTANGIBLE LOSSES (EVEN IF MOJIZU OR ANOTHER PROTECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR OTHER RELIEF ARISING OUT OF, OR RELATED TO, THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE IS TO DEINSTALL AND CEASE USE OF SUCH SOFTWARE. AS SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS AS SET FORTH ABOVE, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH EVENT THE LIABILITY WILL BE LIMITED AS FAR AS LEGALLY POSSIBLE UNDER THE APPLICABLE LEGISLATION.
14. Indemnification
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD MOJIZU, ITS AFFILIATES AND THE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS OF MOJIZU OR ITS AFFILIATES, OR ANY OTHER PERSONS HIRED BY MOJIZU OR ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING ATTORNEYS’ FEES INCURRED BY SAID PARTIES, IN CONNECTION WITH OR ARISING OUT OF YOUR (A) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN, OR (B) VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY, OR (C) USE OR MISUSE OF THE SOFTWARE, OR (D) CONTENT OR COMMUNICATION SPREAD BY MEANS OF THE SOFTWARE.
15. Export Controls
You acknowledge that the Software may be subject to international rules that govern the export of software. You agree to comply with all applicable international and national laws that apply to the Software as well as end-user, end-use and destination restrictions issued by national governments.
16. Applicable Law
The substantive laws of the State of California in the United States of America, without regard to conflict of laws principles, shall govern all matters relating to or arising from this Agreement, and the use (or inability to use) any or all of the services or the Software. You hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in Los Angeles, California, with respect to all matters arising out of or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or services provided by Mojizu, or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
17. Successor Agreements
Mojizu reserves the right to modify this Agreement at any time by providing such revised Agreement to you or by publishing the revised Agreement on the Mojizu website. The revised Agreement shall become effective within thirty (30) days of such publishing or provision to you, unless you expressly accept the revised Agreement earlier by clicking on the "Accept" button. The express acceptance by you, or your continued use of the Software after expiry of the notice period of thirty (30) days, shall constitute your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at [insert web address]. Mojizu reserves the right to make changes to this Agreement from time to time.
18. Electronic Signatures and Agreements
You acknowledge and agree that by clicking on the button labeled "SUBMIT", "DOWNLOAD", "I ACCEPT" or such similar links as may be designated by Mojizu to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE APPLICATION OR SERVICES OFFERED BY MOJIZU. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
19. General
Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between you and Mojizu with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter. Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect. No waiver. The failure of Mojizu at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Mojizu. No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder. Assignment by Mojizu. Mojizu is allowed to at its sole discretion assign this Agreement or any rights hereunder to any affiliate, without giving prior notice. Headings. The section headings used in this Agreement are for convenience only and have no legal or contractual effect. YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO MOJIZU THE RIGHTS SET FORTH HEREIN.
20. Customer Concerns.
If you have any questions about this Agreement or the Software, feel free to contact us at: info@mojizu.com. Effective March 2006 © 2006 Broadspring-Sabet Ventures LLC. All rights reserved |
