THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SPRY, INC. ("SPRY"). CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO INSTALLING THE SOFTWARE. INSTALLING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. License: The License Agreement ("Agreement") grants you the use of the SPRYNET software ("Software") you are installing for access to the SPRYNET Internet Service ("Service"). You may not modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from the Software (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based on the Software. This License grants you the right to copy and transfer the Software, but prohibits you from transferring or assigning your rights and password to the Service to another or multiple users.
2. Title & Copyright: Title, ownership rights, and intellectual property rights in and to the Software remain with SPRY. The Software is protected by United States and international copyright laws and international treaty provisions. Do not remove, obscure, or alter any notice of patent, copyright, trademark, trade secret or other proprietary rights.
3. Term: This Agreement is effective until terminated. This Agreement and your rights to use the Software terminate automatically if you violate any part of this Agreement.
4. Limited Warranty: SPRY has made reasonable checks of the Software to confirm that it will perform during normal use on compatible equipment. However, due to the inherently complex nature of computer software, SPRY does not warrant that the Software downloaded is error-free, will operate without limitation, is compatible with all equipment and software configurations, or will otherwise meet your needs. ACCORDINGLY, THE SOFTWARE IS PROVIDED AS-IS, AND YOU ASSUME ALL RISKS ASSOCIATED WITH ITS USE. AS YOUR SOLE REMEDY, YOU MAY DESTROY OR ERASE THE SOFTWARE.
PURPOSE. SPRY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, ITS MERCHANTABILITY, OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THIS SOFTWARE IS PROVIDED GRATUITIOUSLY, AND ACCORDINGLY, SPRY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATIONS, LOSS OF INCOME, USE, OR INFORMATION.
5. General: This Agreement constitutes the entire Agreement between you and SPRY and supersedes any prior written or oral Agreement concerning the contents of the Software.
6. Export: Distribution of the Software is subject to compliance with all laws, regulations, orders, and other restrictions on export from the United States of America of the Software or any technical information about the Software which are imposed by the government of the United States of America. You agree not to transfer the Software in violation of such laws, regulations, orders or other restrictions on export.
7. SPRY Address: 3535 128th Avenue SE, Bellevue, WA 98006; 206.957.8000.
Service Addendum to the SPRYNET Software License Agreement
This Addendum contains further terms and conditions additional to those set forth in the License Agreement.
1. These terms and any operating rules attached or later published by SPRYNET (and any applicable software license agreement) constitute the entire and only agreement (collectively. the "Service Agreement") between SPRYNET and you the "member" (one who has an account with SPRYNET for the Service), including member's designated users of the account, regarding the access to content, information and other service(s) made available through use of the Product (the "Service"), and supersede all other communications and agreements with regard to the subject matter of this Agreement. (The "Product" is defined in the License Agreement.) Capitalized terms used here will have the meanings given them here or, if none, the meanings given them in the License Agreement. In the event of a conflict between the terms of this Addendum and the License Agreement, this Addendum controls; however, if the matter relates primarily to software licensing with respect to the Product then the License Agreement controls.
Member is free at any time to cancel member's account and terminate this Service Agreement for any reason or for no reason. Member will carry out any such cancellation, however, in accordance with the method or methods established by SPRYNET and will remain responsible for payment of any charges that may be due as of or in connection with such cancellation.
2. Upon published notice, SPRYNET may modify this Service Agreement, including prices and any related operating rules. With requirement of notice, SPRYNET may discontinue or revise any or all other aspects of the Service within its control, in its sole discretion.
3. Unless otherwise agreed, member's right to use the Service or to designate users is not transferable and is subject to any limits established by SPRYNET, or by member's credit card company or other billing institution, as applicable.
4. Member is responsible for and must provide all telephone and other equipment and services necessary to use the Service. Member represents that he/she is at least 18 years of age and has the right and ability to enter into this Service Agreement. Member is responsible for installing, establishing and setting up the account(s) and parameters under which the Service will be used; these account functions may be performed only by a person at least 18 years of age, without exception.
5. Member shall pay, in accordance with the provisions of the billing option selected by member, any registration or monthly fees, connect time charges, minimum charges and other charges incurred by member or its designated users at the rates in effect for the billing period in which those charges are incurred, including but not limited to charges for any purchases made through the Service and any surcharges incurred while using any supplemental networks or services other than the Service. Member shall pay all applicable taxes related to use of the Service by member or its designated users. Member acknowledges that a monthly access charge may apply once the Product is installed for use, and continue until member cancels the account in accordance with the method or methods established by SPRYNET. The monthly charge shall cease to apply for any months subsequent to the month in which member cancels. Charges for certain number of hours of usage in a given month may also apply.
As specified previously, Member is free at any time to cancel member's account and terminate this Service Agreement for any reason or for no reason. Member will carry out any such cancellation, however, in accordance with the method or methods established by SPRYNET and will remain responsible for payment of any charges that may be due as of or in connection with such cancellation.
6. Member shall be responsible for all use of the Service obtained through member's or its designated users' password(s), and for compliance by all such users with this Service Agreement. For example, member may allow individuals in its household to use the Service through member's account. Member acknowledges that member is aware that areas accessible on or through the Service may contain material that is unsuitable for minors (persons under 18 years of age). Member agrees to supervise usage of the Service by minors who use the Service through member's account, including, without limitation, the use of e-mail, "chat," "conferencing" and other communications features and the accessing, viewing and other use of World Wide Web sites and other internet sites. Member also agrees that member will not allow children younger than eight (8) years of age to use the Product.
7. MEMBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT MEMBER'S SOLE RISK. NEITHER SPRYNET NOR ANY OF ITS INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES SPRYNET OR ANY OF ITS INFORMATION PROVIDERS, LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS DISTRIBUTED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHER WISE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS SERVICE AGREEMENT, NEITHER SPRYNET NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY; IT BEING UNDERSTOOD, HOWEVER THAT THIS DISCLAIMER AND LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT SUCH LIABILITY IS INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THE SERVICE AGREEMENT. MEMBER EXPRESSLY ACKNOWLEDGES THAT THE PROVISION OF THIS SERVICE AGREEMENT. MEMBER EXPRESSLY ACKNOWLEDGES THAT THE PROVISION OF THIS PARAGRAPH SHALL ALSO APPLY TO ALL THIRD PARTY CONTENT AND ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICE. MEMBER AGREES THAT IT WILL NOT IN ANY WAY HOLD SPRYNET RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE.
8. This Service Agreement is made in Ohio, and shall be governed by and construed in accordance with the laws of the United States of America and of the State of Ohio. Any cause of action of member or its designated users with respect to the Service must be instituted within one year after the claim or cause of action has arisen or be barred, and must be brought and maintained in a state or federal court located in Franklin County, Ohio. The U.N. Convention on Contracts for the International Sale of Goods does not apply to this Service Agreement, and it is acknowledged that this is a services contract and not a contract for the sale of goods. Member agrees that this Service Agreement is set forth in the English language for the mutual convenience and benefit of the parties.
9. If member's account is a qualified business account and approved by SPRYNET for corporate billing, charges for the services provided under this Service Agreement will be accumulated and identified by User ID number and will normally be invoiced following the end of the month in which the service is provided. Terms of payment on all charges are net, ten (10) days in the currency in which billed. If any payment due hereunder is not made by the member within thirty (30) days after the invoice date, late charges of one and one-half percent (1 1/2%) per month shall be due and payable with respect to such payment, and SPRYNET may, in addition, at its sole discretion and without notice to the member, (a0 suspend its performance under this Service Agreement and the member's and its designated users' access to and use of the Service, or (b) terminate this Service Agreement and member's and its designated users' access to and the use of the Service. For accounts not approved by SPRYNET for corporate billing, member must provide payment by credit card, direct debit or other method approved by SPRYNET.
10. Notwithstanding any acknowledgment of a member purchase order by SPRYNET, only provision or condition in any purchase order, voucher, or other memorandum of the member which is in any way inconsistent with, or adds to, the provisions of this Service Agreement is null and void. Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Service Agreement. SPRYNET may authorize or allow its contractors and other third parties to provide to SPRYNET and/or to member services necessary or related to making the Service available and to perform obligations and exercise rights of SPRYNET under this Service Agreement, and may collect payment on their behalf, if applicable. The provisions of paragraphs 7,8, 10 and 18 and all obligations of and restrictions on member and its designated users shall survive termination of this License Agreement.
11. Member acknowledges that internet sites and use of the Internet might consist of, include and/or provide access to images, sound, messages, text and other content and material that may be unsuitable for children and that may be objectionable to many adults. Member acknowledges that SPRYNET is not responsible for any such content or material and agrees that access to same through use of the Service is at member's sole risk. Member acknowledges that, when using the Internet, member generally is using a physical network and accessing content, information and other services not owned, supported, monitored or controlled by SPRYNET. Member acknowledges that safeguards relative to copyright, ownership, decency, obscenity, reliability and integrity of content may be entirely lacking with respect to the internet and content accessible through it. Member assumes all risk and liability of its use of the Internet, including continuous compliance with this Service Agreement.
12. SPRYNET reserves all copyrights and other rights in and to any content available through the Service and identified as, claimed by SPRYNET as, or known by member to be proprietary to SPRYNET (or its licensors). All copying, modification, distribution, publication or other use by member of an such content is prohibited, except as expressly permitted by SPRYNET.
13. Except as expressly provided by copyright law or other applicable law, copyrighted or otherwise proprietary material must not by way of the Service be uploaded, transmitted, downloaded, displayed, performed, modified, copies, distributed or otherwise used without the permission of the owner(s) or person(s) they specifically authorized. In any such use of copyrighted or otherwise proprietary material, any changes to or deletion of author attribution or copyright or proprietary notice are prohibited. Member assumes all risks regarding the determination of whether material is in the public domain.
14. Member agrees not to publish by way of the Service any information, software or other content which violates or infringes upon the rights of any others or which would be abusive, profane or offensive to any average person, or which member has reason to know would be perceived as abusive, profane or offensive to the particular person or group specifically addressed. Without limiting the generality of the preceding sentence, member will not, by way of the Service: make available or seek any defamatory, obscene or other unlawful material or information; upload or transmit any files containing viruses or corrupted data; use the Service in a manner that harms any person or entity or diminishes the ability of any person or entity to enjoy the internet threaten harass, stalk or otherwise abuse any person or entity or intercept email, engage in "spammina" or threaten or attempt to do either.
15. Member agrees not to use the facilities and capabilities of the Service to conduct any business or activity or solicit the performance of any activity which is prohibited by law or to solicit others to subscribe to internet or online service providers competitive with SPRYNET. Member agrees to comply with all applicable laws, rules and regulations in connection with the Service, the Product or its activities relative to this Service Agreement. SPRYNET will be free, in its reasonable good faith discretion and without notice, to provide member and user information to the courts, law enforcement agencies, or others involved in prosecuting claims or investigations for conduct or conditions alleged to be illegal or to violate or threaten the rights of any person or entity, and to maintain and use internally such information.
16. SPRYNET reserves the right in its sole discretion, if within its power and otherwise within its rights to do so, to edit or delete any information, software or other content or material accessed or provided through use of the Service which in good faith judgment or may violate this Service Agreement or applicable law.
17. SPRYNET reserves the right in it sole discretion and without prior notice to suspend or terminate Service to any member at any time.
18. Member agrees to indemnify and hold SPRYNET harmless from any claims, liability, damages, cost and expense, including reasonable attorney's fees, arising out of or related to the Service or the Product, any use thereof by member (or by another user through member's account) or any violation of the Service Agreement by member (or by another user through member's account).
20. SPRYNET may, without liability or notice, share with other persons or entities aggregate information. This includes information descriptive of habits, usage patterns and similar or related data which do not rely on identifying to such persons or entities the identity of any particular user of the Service. This shall not be construed to limit SPRYNET's use of other information not addressed in this paragraph.
21. SPRYNET does not evaluate, endorse or in any way vouch for the accuracy, completeness, truthfulness or reliability of any service, opinion, advice, material or information made available through the Service. None of such data should be construed or understood to constitute or reflect the views of SPRYNET, SPRYNET does not recommend that such data be relief on for important decisions.
22. If any term of this License Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, it shall be construed in such a way as to eliminate the offending aspects while still giving as much effect as possible to the intentions of such term. If this cannot be done and the entire term is invalid, illegal or unenforceable and cannot be so repaired, then the term shall be considered to be stricken from this Service Agreement as if it had not been included from the beginning. In any such case, the balance of this Service Agreement shall remain in effect in accordance with its remaining terms notwithstanding such invalid, illegal or unenforceable term. SPRYNET may enforce or decline to enforce any or all of the terms of this License Agreement in its sole discretion. In no event shall SPRYNET be required to explain, comment on, suffer liability for or forfeit any right or discretion based on its enforcement, non-enforcement or consistency of enforcement of these terms, except in the event SPRYNET is shown clearly and convincingly to have exercised such discretion for the sole purpose of intentionally harming a member.
