PLEASE READ THE GATOR CORPORATION PRIVACY STATEMENT AND END USER LICENSE AGREEMENT (COLLECTIVELY "Terms and Conditions") CAREFULLY AND MAKE SURE YOU UNDERSTAND THEM. THEY CONTAIN IMPORTANT INFORMATION THAT YOU SHOULD KNOW BEFORE ACCEPTING ANY GAIN-Supported Software (DEFINED BELOW).
The Gator Corporation ("TGC") Terms and Conditions describe the operation of the GAIN-Supported Software you are about to download and the terms and conditions that govern your use of this software. TGC provides you the opportunity to download a software product you desire at no charge or a reduced charge in return for your agreement to also download TGC's software product which will periodically deliver advertisements and promotional messages to your computer based on your interests as shown by the websites you view. Before you may download and install these software products, you must agree to the terms and conditions described below.
You may terminate these Terms and Conditions at any time by removing all GAIN-Supported Software from your computer using the Add/Remove Programs menu in the Microsoft Windows Control Panel and destroying any other copies of GAIN-Supported Software that may have been made.
Soon after all GAIN-Supported Software has been removed the GAIN AdServer (defined below) will remove itself automatically. Using the Add/Remove Programs menu is the only authorized means to uninstall GAIN-Supported Software and the use of any other means may not result in the proper un-installation of GAIN-Supported Software.
Http://webpdp.gator.com/gain/32/about-gain-01.html, incorporated herein by reference, generates a list of GAIN-Supported Software that resides on the computer that is used to access the link.
The Gator Corporation
Privacy Statement and End User License Agreement
("Terms and Conditions")
The Gator Corporation ("TGC") provides personal computer users with a winning proposition: the ability to obtain popular software applications (often valued at up to $30) free-of-charge or at a reduced cost in exchange for users' agreement to accept advertising and other promotional messages delivered by TGC to users' personal computers. Downloading or installing these ad-supported software applications requires acceptance of these Terms and Conditions which allows TGC to download and install the "GAINsm AdServer" software, which delivers "GAIN" branded advertising, software, and various informational or promotional messages to computer screens while users view Internet Web pages ("GAIN Ads"). When available, users may obtain ad-free versions of TGC's software applications by purchasing a license to such versions in which case the user will not receive advertising, but TGC will collect and use the information described in these Terms and Conditions for all the other purposes described herein. Direct a brows
er to
http://www.gatorcorporation.com/ourproducts/ to purchase licenses to ad-free versions of TGC's software applications.
The GAIN AdServer is patent-pending technology that identifies the interests of anonymous computer users based on their computer usage and web surfing behavior, including the URLs of Web pages viewed by users and other criteria but which does not collect ANY personally identifying information. The GAIN AdServer displays GAIN Ads on computer screens on behalf of TGC's advertising clients and not on behalf of the Web site the user may be viewing when the ad appears. TGC's advertising clients may be competitors of the publishers whose Web pages users may be viewing, or may have recently viewed. GAIN Ads are distinguishable from other ads or messages because all GAIN Ads contain the trademark "GAIN" in the title bar and/or the GAIN logo in the ad.
"GAIN-Supported Software" includes both software applications published by TGC ("TGC GAIN-Supported Software"), as well as software applications developed by other companies ("Third Party GAIN-Supported Software"). For a list of GAIN-Supported Software published by TGC, view the Web page at:
http://www.gatorcorporation.com/ourproducts/. At any time, you can see a list of all GAIN-Supported Software residing on a computer by directing that computer's Internet browser to
http://webpdp.gator.com/gain/32/about-gain-01.html.
Unless otherwise specified, these Terms and Conditions apply to TGC GAIN-Supported Software but do not apply to Third Party GAIN-Supported Software. Third-party GAIN-Supported Software is governed by that third-party's legal agreements.
These Terms and Conditions shall control in the event of any inconsistency between these Terms and Conditions and any prior Gator Corporation terms and conditions agreed to.
--- End User License Agreement ("Agreement") ---
Terms defined in the TGC Privacy Statement used in this Agreement will retain the definition provided in the TGC Privacy Statement. The GAIN AdServer and TGC GAIN-Supported Software shall be collectively referred to as "Licensed Materials." Licensed Materials, any Web sites owned and operated by us, and any content available therefore shall be collectively referred to as "Gator Supplied Materials."
Ownership
All Users of This Computer Bound. You represent and warrant that you are the owner of the computer and that you have authorized the download and installation of the GAIN AdServer and GAIN-Supported Software, or that the owner of the computer has authorized you to do so. You agree, with respect to all other users of the computer that you have caused the GAIN AdServer and GAIN-Supported Software to reside, to (i) provide a copy of the TGC Privacy Statement and End User License Agreement; and (ii) to obtain their consent to same before allowing them to use the computer to view Web sites on the Internet. Alternatively, if you have the legal right to accept this Agreement on behalf of one or more users of the computer that you have caused the GAIN AdServer and GAIN-Supported Software to reside, then you hereby accept this Agreement on behalf of all such other users. Also, you agree not to use the GAIN AdServer, or GAIN-Supported Software, in a manner prohibited by law, or in violation of any contractual provision
by which you are bound. You agree to comply with all applicable laws, rules and regulations in your use of the GAIN AdServer and GAIN-Supported Software.
Access and Interference
You agree that you will not use, or encourage others to use, any unauthorized means for the removal of the GAIN AdServer, or any GAIN-Supported Software from a computer. For a list of authorized means for the removal of GAIN-Supported Software, view
http://webpdp.gator.com/gain/32/about-gain-01.html. You also agree that you will not use, or encourage others to use, any robot, spider, other automatic or non-automatic manual device or process intended to interfere or attempt to interfere with the proper working of any Gator Supplied Materials, or third party GAIN-Supported Software. You agree not to use any means to avoid the display of any GAIN Ads while retaining the ability to use any GAIN-Supported Software other than purchasing a license to all GAIN Supported Software.
Voluntary Software and Right to Remove
You understand and agree that the presence of any GAIN-Supported Software on any computer is voluntary and that you may remove any of them from your computer at any time. To stop receiving GAIN Ads every GAIN-Supported Software program residing on the computer must be removed or, alternatively, replaced with a paid version of that GAIN-Supported Software program. Users can view a list of all GAIN-Supported Software on their computer, along with instructions for its removal, in a variety of locations including: (i) through the "start," "programs," "GAIN," "About GAIN" menu entry (via a hypertext link), (ii) by clicking on the question (?) box at the top right of the title bar of certain GAIN Ads, and (iii) via TGC's web site at
http://webpdp.gator.com/gain/32/about-gain-01.html, incorporated herein by reference. You can purchase versions of TGC published GAIN-Supported Software programs that do not display advertising at the following TGC web site:
http://www.gatorcorporation.com/ourproducts/. To remove a GAIN
-Supported Software program from a computer, you must use the Microsoft( Windows( Add/Remove Programs menu in the Microsoft Windows Control Panel. Shortly after every GAIN Supported software program is removed, the GAIN AdServer will remove itself automatically. Please note that removing all GAIN-Supported Software does not necessarily cause the removal of any Enhancement Technologies (as described above).
Termination
These Terms and Conditions may be terminated at any time, by any user, by removing all GAIN-Supported Software from the computer using one or more of the above described removal methods and destroying any other copies of the GAIN AdServer and GAIN-Supported Software you may have made.
Security
Users of the GatorSM eWallet, are solely responsible for maintaining the confidentiality of their Gator eWallet master password. They are also responsible for all uses of their Gator eWallet master password and any and all related uses of their information stored in any TGC GAIN-Supported Software,
whether or not authorized by them.
Links
Gator Supplied Materials and GAIN Ads that are displayed on a computer screen may contain links to web sites operated by other parties. These linked web sites are not under the control of TGC, and TGC is not responsible for the content available on any other Internet sites so linked. Unless otherwise stated, such links do not imply TGC's endorsement of material on any other web site. Access to any other Internet sites linked as herein described is at the users own risk.
Unless otherwise set forth in a written agreement between you and TGC, in order to link to one or more of TGC's Web Site(s) you must adhere to TGC's linking statement as follows: (i) any link to TGC's Web Site must be a text only link clearly marked "TGC Web Site," (ii) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with TGC's names and trademarks, (iii) the link must "point" to the URL
http://www.gatorcorporation.com/ and not to other pages within TGC Web Site, (iv) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with TGC, Inc., (v) when selected by a user, the link must display TGC Web Site on full-screen and not within a "frame" on the linking web site, and (vi) TGC reserves the right to revoke its consent to the link at any time and in its sole discretion.
Scope of License
TGC grants you a non-exclusive, limited license, pursuant to the terms hereof, to only (a) install and use the most current versions of Licensed Materials solely for the purpose of accessing and using GAIN-Supported Software available through our Web site or servers, or the Web sites and servers of our business associates, and (b) use Licensed Materials in the ordinary manner for which the products were designed as provided in the user "Help" screens, frequently asked questions, on TGC's Web sites, or in other TGC supplied product usage documentation and only for your personal, non-commercial purposes.
License Restrictions
TGC may from time to time, either automatically or through other means, distribute an update to the Licensed Materials and/or may replace Licensed Materials with newer versions thereof and/or otherwise modify or add to the Licensed Materials. Your license to an existing version of Licensed Materials may, at TGC's discretion, expire when new versions of Licensed Materials are released. When installed on your computer, all Licensed Materials that communicate with TGC or third party servers do so as described in TGC Privacy Statement.
Additionally, TGC may require the update or automatic distribution of Licensed Materials on your computer when a new version of the Licensed Materials is released to the general public, when new features are available, to display promotional offers, and/or to add new applications to the applications that comprise Licensed Materials. This update or new download may occur automatically or through other means. You understand that TGC and/or one of our business associates may require
your review and acceptance of TGC's or their then current privacy statement and/or license agreement before you will be permitted a limited license to any subsequent versions of Licensed Materials. Notwithstanding the foregoing, TGC and its business associates have no obligation to make available to you any subsequent versions of Licensed Materials.
You may not access or use Licensed Materials other than through the graphical user interface provided with the Licensed Products and you are prohibited to access or cause the operation of the Licensed Materials through the use of any type of high-volume, automated, or electronic processes. You may not distribute or copy (other than for backup purposes) the Licensed Materials. You may not, and you agree not to attempt or allow others to attempt to, modify, reverse-engineer, decompile, disassemble, or otherwise discover the Licensed Materials or equivalents of Licensed Materials including but not limited to TGC's technology and methodology for delivery of advertisements and the content of any and all of TGC's communications and content stored on TGC's servers, or to access or modify the Licensed Materials' source code in any way. You do not have the right to create derivative works of Licensed Materials and any and all such modifications or enhancements to the Licensed Materials are the sole property of TGC or
its business associates. You further agree not to access TGC or TGC business associate services or software application by any means other than the interface provided by TGC or such business associate to access the relevant service. You acknowledge and agree that any and all communications between TGC and the Licensed Materials and the content stored on TGC's computer servers and in its software includes confidential information of TGC and you may not access, publish, transmit, display, create derivative works of, store, or otherwise exploit any such confidential information except as such functions are performed by the Licensed Materials in the ordinary course of operation. Any use of a packet sniffer or other device to intercept or access communications between TGC and the Licensed Materials is strictly prohibited. Without limiting TGC's rights, you understand that TGC, in its discretion, may modify, discontinue, or suspend your right to access any of the Licensed Materials at any time; provided, however, i
n the event that TGC makes such modification, discontinuance, or suspension of your right to access any of the Licensed Materials, you may terminate your obligation to receive GAIN Ads, and this Agreement, by removing all GAIN Supported Software as provided hereunder.
TGC reserves all rights in Licensed Materials not expressly granted to you in this Agreement.
Other Restrictions
You may not rent, lend, assign, or lease Licensed Materials, but you may transfer your rights under these Terms and Conditions on a permanent basis provided (i) you transfer all copies of the Licensed Materials and these Terms and Conditions; and (ii) the recipient agrees to be bound to these Terms and Conditions. Any transfer must include the most recent product upgrade. Prior to transferring Licensed Materials you must remove the Licensed Materials to be transferred from your machine.
Ownership
You agree that all Licensed Materials are licensed, not sold to you. You agree that Licensed Materials belong to TGC, including all intellectual and proprietary rights, unless otherwise specified. TGC retains all right, title and interest in and to Licensed Materials at all times, and regardless of the form or media in or on which the original or other copies may subsequently exist. Additionally, all content accessed through Licensed Materials is the property of the applicable content owner and may be protected by applicable intellectual property laws. This Agreement gives you no rights to such content. Finally, any suggestions, ideas or inventions that you voluntarily and optionally disclose to us through any means will be used, or not used, by TGC at TGC's sole discretion; and, TGC will have no obligation to you regarding any ideas or inventions that you disclose through such means.
Disclaimer of Warranty
USE OF Gator Supplied Materials IS AT YOUR OWN RISK. TGC PROVIDES Gator Supplied Materials ON AN "AS IS," "WHERE IS," BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR NON-INFRINGEMENT. TGC ALSO DISCLAIMS ALL LIABILITY WITH REGARD TO YOUR VIEWING OF ANY WEB SITES THAT MAY BE LINKED FROM ANY GATOR SUPPLIED MATERIALS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. TGC MAKES NO WARRANTY THAT (i) THE Gator Supplied Materials ARE ACCURATE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE Gator Supplied Materials WILL BE RELIABLE; (iii) THE Gator Supplied Materials WILL IDENTIFY ANY IDENTITY THEFT, (iv) THE QUALITY OF ANY PRODUCTS OBTAINED OR PURCHASED THROUGH THE USE OF THE Gator Supplied Materials WILL MEET YOUR EXPECTATIONS; OR (v) ANY ERRORS IN THE Gator Supplied Materials WILL BE CORRECTED. The
above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied warranties.
Limitation of Liability
IN NO EVENT WILL TGC, DISTRIBUTORS, DISTRIBUTEES, SUPPLIERS, MERCHANT BUSINESS ASSOCIATES, ADVERTISERS, THIRD PARTY DEVELOPERS OR DISTRIBUTORS OF GAIN-SUPPORTED SOFTWARE, OR ANY OF THE FOREGOING ENTITIES OFFICERS, DIRECTORS, EMPLOYEES, OR AGENT (COLLECTIVELY "Protected Parties") BE LIABLE FOR ANY INDIRECT DAMAGES, INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF TGC PRIVACY STATEMENT, END USER LICENSE AGREEMENT, OR YOUR USE OR INABILITY TO USE Licensed Materials, OR Gator Supplied Materials EVEN IF A Protected Party HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Protected Parties MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT, OR TGC PRIVACY STATEMENT, EXCEED THE LESSER OF $100 OR THE REVENUE ACTUALLY RECEIVED BY TGC DIRECTLY ATTRIBUTABLE TO THE GAIN AdServer.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Protected Parties liability shall be limited to the extent permitted by law.
No Protected Parties Liability
Protected Parties assume no liability hereunder for, and shall have no obligation to defend you or to pay costs, damages or attorneys' fees for, any claim arising from: (i) any method or process in which Licensed Materials may be used by you; (ii) any results of using Licensed Materials; (iii) any use of other than a current unaltered release of Licensed Materials; or (iv) the combination, operation or use of any Licensed Materials furnished hereunder with non-Licensed Materials if such infringement would have been avoided by avoidance of the combination, operation, or use of the Licensed Materials with other programs, data, or other materials.
Privacy Statement and Other Policies
You agree to be bound by and comply with the TGC Privacy Statement applicable to any Licensed Materials, the privacy statements applicable to third party GAIN-Supported Software, and any other policies governing the use of Licensed Materials for which, as appropriate, you have accepted via a click-thru agreement; or have been provided notice. Visit
http://www.gatorcorporation.com/help...rdparties.html to view a list of any third parties, if any, who set and access cookies on your computer in order to facilitate a feature or service of the GAIN AdServer or TGC GAIN-Supported Software. This list will also include links to their privacy statements.
Export Controls
The GAIN AdServer, GAIN-Supported Software, and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Sudan, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the GAIN AdServer or GAIN-Supported Software, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws.
Applicable Law
The laws of the State of California will govern this Agreement, without reference to conflicts of law principles. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the state and federal courts in Santa Clara or San Mateo County, California. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement.
Arbitration
Any claim or controversy arising out of or related to these Terms and Conditions, Licensed Materials, Gator Supplied Materials, or any GAIN-Supported Software shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. The foregoing shall not preclude TGC from seeking any injunctive relief in State or Federal courts for protection of TGC's intellectual property rights.
Successor Agreements
These Terms and Conditions may change in the future. In such case, and when appropriate, TGC will obtain your consent prior to the new document going into effect.
In most cases, TGC will provide you with an on-line pop-up window notice informing you that changes have been made to the documents and will provide you either with an active link, or inactive URL address, that you can use to view a web page containing the revised documents (or leading you to the appropriate documents). TGC will always post its most recent Privacy Statement and End User License Agreement on TGC's web site that can be accessed at
http://www.gatorcorporation.com/help...acy-help.html.
You agree that after receipt of such change notice, you consent to TGC's revised Terms and Conditions unless you remove all GAIN-Supported Software from your computer, and destroy all copies of same you may have created. Failure to remove and destroy all GAIN-Supported Software from your computer will be deemed an acceptance of the terms of TGC's most current Terms and Conditions for which you have given your consent, or for which you have been given notice, as appropriate. Except as provided in this section, these Terms and Conditions may not be revised except in writing signed by all relevant parties.
U.S. Government Restricted Rights
Licensed Materials are provided with Restricted Rights. Use, duplication, or disclosure by the United States Government is subject to restrictions set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
General
These Terms and Conditions, as modified from time to time as described above, and including the policies incorporated by reference, sets forth the entire understanding and agreement between you and TGC with respect to the subject matter hereof. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected or impaired thereby. TGC shall not be liable for any delay or failure in performance under this Agreement or interruption of service resulting from acts of God, civil or military authority, war, labor disputes, materials provided by third parties, or any cause beyond the reasonable control of TGC. Except as described herein, you may not assign this Agreement without our explicit consent.
Effective: August 2003
Gator and GAIN are registered service marks of The Gator Corporation. TGC, Gator eWallet, Offer Companion, Precision Time, Date Manager and WeatherScope are marks of The Gator Corporation. The use of the mark Gator, alone, is strictly prohibited.
Microsoft Windows is either a registered trademark or a trademark of Microsoft Corporation in the United States and/or other countries.
