Version 1.0 (September 1, 2010)
Terms and Conditions
NOTE TO USER: THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE WWW.INSTALLMANAGER.COM WEBSITE. PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS, THE PRIVACY POLICY REFERENCED HEREIN AND ANY APPLICABLE END USER LICENSE AGREEMENT(S) PERTAINING TO SOFTWARE DOWNLOADED ON, THROUGH OR IN CONNECTION WITH THIS WEBSITE. BY USING THIS WEBSITE YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LEGALLY ENFORCEABLE AGREEMENT. These Terms and Conditions (these “Terms”) are an important legal agreement between you (“you”, “your” or “Licensee”) and Design and Marketing DM S.A., a Costa Rican corporation (“we”, “us” or “Licensor”). We are willing to allow you to use the Site provided that you agree to and accept all of these Terms. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SITE FOR ANY PURPOSE.
1. Acceptance of Terms
Licensor and its affiliates provide the www.installmanager.com website (the "Site") and any services available on the Site to you subject to these Terms. These Terms constitute a binding legal agreement between you and Licensor regarding your access and use of the Site and any services. Please read this Agreement carefully. By accessing or using the Site, you accept these Terms and any modifications that may be made to the Terms from time to time. If you do not agree to any provision of these Terms, you should not use the Site or any of the products or services contained therein.
2. Description of Services; Scanning of Your Computer for Outdated Software
Through its Site, Licensor provides you with the opportunity to purchase and/or download software, as well of a variety of other services and resources, including, but not limited to, tools, scanning of your computer for outdated software, communication forums and/or product information (each, a "Service" and collectively, "Services"). You understand and agree that the Services may include advertisements and that these advertisements are necessary for Licensor to provide the Services to you. The Services, including any updates, enhancements, or new features, are subject to these Terms.
One of the Services offered on or through the Site is scanning your computer system for outdated software and, based upon the results of such scan, offering you the ability to download and/or purchase software updates and/or other products (the “Software Scanning Services”). The Software Scanning Services will be provided if and to the extent you indicate at the appropriate screen or tab. You will have the option of having the Software Scanning Services provided only when you want a scan, or automatically from time to time.
If you use the Software Scanning Services, you understand and agree that Licensor will have full access to your computer system for the purpose scanning your software, and that the results of such scan will be used for purpose of marketing software and potentially other products to you.
[Top]3. Age Limitation.
You must be at least 18 years of age to access and use the Site and any Service. By using the Site or any Service, you represent that you are at least 18 years old. Licensor reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Licensor shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
4. Privacy Policy
We believe strongly in providing you notice of how we collect and use data, including personally identifiable information, from the Site. Therefore, we have adopted a Privacy Policy that you should refer to in order to fully understand how we collect and use information. You understand that through your use of this Site or the Services, you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to or from the United States for storage, processing and use by Licensor.
5. Proprietary Rights; Limited License
All Site materials, including, without limitation, Licensor's logos, and all text, designs, graphics and other files, and the selection and arrangement thereof, are the proprietary and copyrighted property of Licensor or its contributors or licensors. Subject to these Terms, Licensor grants you a limited license to make personal, informational, non-commercial use of this Site. You may view and electronically copy and print to hard copy portions of this Site for the sole purpose of using materials it contains for personal, informational, non-commercial use only. Any other use of this Site or the materials contained herein without the prior written permission of Licensor is strictly prohibited, including, without limitation: (a) any resale or commercial use of this Site or its content or Services; (b) the retransmission, rebroadcasting or other distribution, display or publication of any information contained in this Site or the Services; (c) making derivative uses of this Site and its contents, including the Services; (d) use of any data mining, robots or similar data-gathering or data extraction methods; (e) downloading (other than the page caching) of any portion of this Site or any information contained on this Site, except as expressly permitted on this Site; or (f) any use of this Site or Services other than for their intended purpose.
Products, processes or technology described in this Site may also be subject to other intellectual property protection as well, and all rights therein are reserved by Licensor. Except as noted above, you are not granted any right or license by implication, estoppel or otherwise in or under any patent, copyright, trademark or other proprietary right of Licensor or any third party. All information provided by Licensor on this Site is the sole and exclusive property of Licensor or its contributors or licensors and hereby expressly reserved.
[Top]6. Notice Regarding Software Available on this Site
Any software that is made availablefrom this Site ("Software") is the copyrighted work of Licensor (for a list of available Software see uninstall instructions) and/or the third party author or supplier of the Software. Use of the Software is governed by the terms of the End User License Agreement, if any, that accompanies or is included with the Software ("EULA" or "License Agreement"). You will be unable to install any Software that is accompanied by or includes a EULA unless you first agree to the License Agreement terms. Any reproduction or redistribution of the Software that is not in accordance with the EULA is expressly prohibited by law and may result in severe civil and/or criminal penalties. Violators will be prosecuted to the maximum extent possible.
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. EXCEPT AS WARRANTED IN THE LICENSE AGREEMENT, LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SOFTWARE, INCLUDING ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
[Top]7. Account, Password and Security
This Section applies to users of the Site where the user may register for an account. For certain of the Services, you may receive a password and account designation. In such event, you are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Licensor of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Licensor cannot and will not be liable for any loss or damage arising from your failure to comply with this section or relating to passwords or account designations generally.
8. Trademarks
Licensor, Licensor's logos and other Licensor product or service names or slogans contained in this Site are either trademarks, service marks or registered trademarks of Licensor and its licensors or suppliers, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Licensor. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Licensor, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Licensor. All other trademarks, registered trademarks, product names and company names or logos mentioned herein are used for identification purposes only, and are the property of their respective owners.
9. Repeat Infringer Policy; Claims of Copyright Infringement; Designated Agent
Licensor respects the intellectual property of others, and we ask our users to do the same. Licensor may, in appropriate circumstances and in its sole discretion, limit access to this Site and/or terminate the accounts of any users who infringe the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide Licensor's designated copyright agent privacy@installmanager.com the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of where the material that you claim is infringing is located on this Site; (d) your name, address, telephone number and email address; (e) 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; and (f) a statement by you, made under penalty of perjury, that the above information 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. Failure to include all of this information may result in a delay of the processing of your notification.
10. User Content; Forums and Interactive Areas This Site may include discussion forums or other interactive areas, including chat rooms, bulletin boards, content classification areas, or areas where you may post materials for other users to see ("Interactive Areas"). You are solely responsible for your use of such Interactive Areas and use them at your own risk. By using any Interactive Area, you agree not to post, upload, input, provide, submit, transmit, distribute or otherwise publish through this Site any of the following:
Any message, data, information, text, graphics or other material ("Content") that is false, misleading, unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, hateful, racially or ethnically offensive, or otherwise objectionable; Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law, including without limitation, the regulations of the U.S. Securities and Exchange Commission, or any rules of any securities exchange such as the New York Stock Exchange, the American Stock Exchange, or the NASDAQ; Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any Content, you represent and warrant that you own all necessary rights, or have permission from the rightful owner(s) of the Content, to grant Licensor all of the license rights granted in these Terms; Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity or is fraudulent; Unsolicited promotions, advertising or solicitations for funds, goods or services, including junk mail and spam, without the express written permission of Licensor; Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; Content that advertises products or services competitive with Licensor's products and services; Viruses, corrupted data or other harmful, disruptive or destructive files; and Content that, in the sole judgment of Licensor, is objectionable or that restricts or inhibits any other person from using or enjoying the Interactive Areas or the Sites, or that may expose Licensor or its users to any harm or liability of any type.
Licensor takes no responsibility and assumes no liability for any Content posted or uploaded by you or any third party, or (without limitation) for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the Interactive Areas is at your own risk. Information posted in any Interactive Area should not be considered authoritative and cannot be guaranteed as to accuracy. As a provider of interactive services, Licensor is not liable for any statements, representations, or Content provided by its users in any public forum, personal home page or other Interactive Area. You understand that during your use of any Site, Service, or Software, you may be exposed to content that is offensive, indecent, or objectionable, and you hereby waive any legal or equitable rights or remedies you have or may have against Licensor arising out of your use of any Site, Service, or Software. Although Licensor has no obligation to screen, edit or monitor any of the Content posted in any Interactive Area, Licensor reserves the right, and has absolute and sole discretion, to remove, screen or edit any Content that violates these provisions or is otherwise objectionable. Any use of the Interactive Areas or the Site in violation of the foregoing is in violation of these terms and may result in, among other things, the termination or suspension of your rights to use the Interactive Areas and/or the Site.
[Top]11. User Submissions
Some of the Services may allow you to submit or transmit audio, video, text, or other materials (collectively, “User Submissions”) to or through the Services. When you provide User Submissions, you grant to Licensor, its parent, subsidiaries, affiliates, and partners a non-exclusive, worldwide, royalty-free, fully sublicenseable license to use, distribute, edit, display, archive, publish, sublicense, perform, reproduce, make available, transmit, broadcast, sell, translate, and create derivative works of those User Submissions, and your name, voice, likeness and other identifying information where part of a User Submission, in any form, media, software, or technology of any kind now known or developed in the future, including, without limitation, for developing, manufacturing, and marketing products. You hereby waive any moral rights you may have in your User Submissions.
We respect your ownership of User Submissions. If you owned a User Submission before providing it to us, you will continue owning it after providing it to us, subject to any rights granted in the Terms and any access granted to others. If you delete a User Submission from the Services, our general license to that User Submission will end after a reasonable period of time required for the deletion to take full effect. However, the User Submission may still exist in our backup copies, which are not publicly available. If your User Submission is shared with third parties, those third parties may have retained copies of your User Submissions. In addition, if we made use of your User Submission before you deleted it, we will continue to have the right to make, duplicate, redistribute, and sublicense those pre-existing uses, even after you delete the User Submission. Terminating your account on a Service will not automatically delete your User Submissions.
We may refuse or remove a User Submission without notice to you. However, we have no obligation to monitor User Submissions, and you agree that neither we nor our parent, subsidiaries, affiliates, employees, or agents will be liable for User Submissions or any loss or damage resulting from User Submissions.
Except as provided in the Privacy Policy, we do not guarantee that User Submissions will be private, even if the User Submission is in a password-protected area. Accordingly, you should not provide User Submissions that you want protected from others.
You represent and warrant that you have all rights necessary to grant to Licensor the license above and that none of your User Submissions are defamatory, violate any rights of third parties (including intellectual property rights or rights of publicity or privacy), or violate applicable law.
12. Feedback
If you provide feedback to us regarding the Site, a Service, or Software ("Feedback"), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you waive any "moral rights" in the Feedback and you hereby grant to us a perpetual and irrevocable license to use the Feedback for any purpose.
13. No Unlawful or Prohibited Use
As a condition of your use of this Site, you will not use the Services for any purpose that is unlawful or prohibited by these Terms. You may not use the Services in any manner that could damage, disable, overburden, or impair any Licensor server, or the network(s) connected to any Licensor server, or interfere with any other party's use and enjoyment of any Services. You may not attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any Licensor server or to any of the Services, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
14. Third Party Content & Services
Licensor may provide links to web pages and content and products of third parties ("Third Party Content") in connection with the Services. Licensor does not monitor nor does it have any control over any Third Party Content. Licensor does not necessarily endorse or evaluate Third Party Content and does not assume any responsibility for acts and omissions of third parties. Further, Licensor makes no guarantees or representations regarding Third Party Content, and undertakes no responsibility to update or review any Third Party Content. Users use these links and Third Party Content contained therein at their own risk.
15. Disclaimer
THIS SITE, THE SERVICES, AND THE SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, TIMELY, SECURE, CURRENT, OR ERROR-FREE, OR THAT THE QUALITY OF ANY SERVICES OR MATERIALS OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THIS SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Licensor reserves the right to change any and all content contained on this Site at any time without notice. Reference to any products, Services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Licensor.
16. Limitation of Liability
IN NO EVENT SHALL LICENSOR, OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, OR EMPLOYEES, BE LIABLE FOR ANY DIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS SITE OR THE MATERIALS CONTAINED IN, OR ACCESSED THROUGH, THIS SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY THE USER ON ANY INFORMATION OBTAINED FROM LICENSOR, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO LICENSOR'S RECORDS, PROGRAMS, OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF LICENSOR (WHETHER IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED, PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) ARISING OUT OF OR RELATING TO THE USE OF THE SITE EXCEED ONE HUNDRED US DOLLARS (US $100). THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you. In such jurisdictions, the foregoing disclaimers shall apply to the greatest extent permitted by applicable law or shall be reconstructed to comply with the disclaimer's intent to the fullest extent permitted by such jurisdiction.
17. Indemnification
You agree to defend, indemnify, and hold harmless Licensor, its parent, subsidiaries, affiliates, and the directors, officers, employees, shareholders, vendors, partners, contractors, agents, licensors or other representatives of each of them and all of their successors and assigns (collectively, the “Licensor Parties”) with respect to all claims, costs (including attorney’s fees and costs), damages, liabilities, and expenses or obligations of any kind, arising out of or in connection with (a) your use of the Site and/or Services, (b) any breach of any representation, warranty or covenant that you have made in these Terms; and (c) any discussion forums or interactive areas contained on the Site. Licensor reserves the right to assume the exclusive defense and control of any claim subject to indemnification, and in such cases you agree to cooperate with us to defend such claim. You may not settle any claim covered by this Section 17 without Licensor’s prior written approval.
18. Applicable Law and Venue
These Terms shall be interpreted pursuant to the internal laws of the State of California and you irrevocably and unconditionally agree to the exclusive jurisdiction of any court located in San Diego, California for any actions, suits or proceedings arising out of or relating to these Terms (and you agree not to commence any action, suit or proceeding relating thereto except in such place and not to plead or claim that such place is an inconvenient or otherwise improper or inappropriate forum).
19. Modification & Amendments
Licensor reserves the right to amend at any time any policies governing this Site, including these Terms, by posting the amended terms and providing notice of such amendments. The amended terms shall be effective immediately after they are initially posted on this Site. If you do not agree with any amended term, you must cease using this Site and all Services.
20. Termination and Site Access
We may take any of the following actions in our sole discretion at any time and for any reason without giving you prior notice:
• Restrict or terminate your access to the Services;
• Change or discontinue the Services;
• Deactivate your accounts and delete all related information and files in your accounts;
• Provide information concerning you and your activities to comply with applicable laws or respond to court order, subpoenas, or other lawful requests, or if we believe doing so would protect your safety or that of another person or protect the security of the Services, or as otherwise described in the Privacy Policy.
We will not be liable to you or any third party for taking any of these actions and we will not be limited to the remedies above if you violate these Terms.
If you do not agree to these Terms, you should immediately stop using the Services. If you want to delete your account on a Service, please use contact instructions posted on the Service at which you obtained the account. Any submissions you made while using the Services will continue to be governed by these Terms.
Sections 6 and 11-15 of these Terms will survive any termination of your access to the Services, whether we terminate your access or you voluntarily discontinue your use.
21. Miscellaneous
These Terms, including all additional terms, conditions, and policies on the Services, constitute the entire agreement between you and us and supersede all prior agreements with respect to the subject matter hereof. No waiver by Licensor, whether express or implied, of any provision of these Terms shall constitute a continuing waiver of such provision or a waiver of any other provision of these Terms; nor shall Licensor be stopped from enforcing any provision of these Terms, except by written instrument executed by Licensor. If any provision of these terms and conditions shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions. You agree that, except as may otherwise be expressly provided herein, there shall be no third party beneficiaries to these Terms.