END-USER LICENSE AGREEMENT
This is an agreement between you (“you” or “User”) and 1&1 Mail & Media Inc. d/b/a GMX.com ("GMX.com") with respect to software application offered by GMX.com that is downloaded or otherwise installed following your acceptance of this Agreement (the “Application”).
BY INSTALLING THE APPLICATION YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Agreement applies to the Application, which includes software, as well as any and all material provided with it; and any upgrades, modified versions, additions, and improvements, if any. It is your responsibility to read this Agreement carefully. By clicking the button “I accept“ after reading this Agreement you accept the terms and conditions of this Agreement. If you are not in agreement with the terms and conditions of this Agreement you must decline this Agreement by clicking on the “Cancel” button. Should you do so, you are not permitted to download, install, or otherwise use the Application.
This Agreement may be updated at any time by GMX.com without notice to you. Use of the Application after any such change constitutes your acceptance of such changes. The latest version of this Agreement can be found at http://dl.GMX.com/toolbar/eula.txt. Updates to the Application may be licensed to you by GMX.com with additional or different terms.
This is a license agreement and not an agreement of sale. GMX.com and its affiliates and/or business partners remain the sole owners of the Application.
1. Ownership and License
This Application is protected under copyright law and international copyright agreements and treaties as well as by other laws, regulations, and agreements pertaining to the protection of intellectual property rights as well as confidentiality and trade secrets. GMX.com (and/or its licensors) own all rights, title, and interest in and to the Application. The license granted herein grants you no right, title, or interest in any intellectual property owned or licensed by GMX.com, including (but not limited to) the Application and GMX.com’s trademarks, and creates no relationship between yourself and GMX.com's licensors, or between you and GMX.com other than that of GMX.com’s licensee.Upon acceptance of this Agreement GMX.com grants you a revocable, non-exclusive, non sublicensable, and non-transferable license for the personal, non-commercial use of the Application, in particular:
- For installation and use on your personal computer or mobile device in object code form for noncommercial use;
- To load the Application into the random access memory (RAM) of your computer or mobile device and operate the Application in conformity with this license;
- To install one copy of the Application on a permanent storage device (hard drive);
- To make one backup copy, provided your backup copy is not installed or used on any computer other than the computer on which the Application was initially installed pursuant to this Agreement; and
- To print the results and screen images from the Application for your personal use.
You are NOT permitted:
- To modify, translate, reverse engineer, decompile, disassemble, or develop another product or otherwise prepare derivative works based upon the Application;
- To copy or duplicate the Application except as permitted under this Agreement, to publicly display the Application, or to distribute, sell, offer to sell, lease, rent, secure an interest in, or to otherwise transfer any rights to the Application;
- To remove or otherwise modify the copyright or other intellectual property notices or identifying marks, during the otherwise permitted duplication or printing of the results or screen images from the Application or otherwise;
- To incorporate the Application into any computer chip or the firmware of a computing device manufactured by you;
- To use the Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement.
All rights not expressly granted to you are reserved by GMX.com.
2. Commencement and Termination of License
2.1. This Agreement comes into force with the installation of the Application or any other use of the Application.
2.2. The Application is provided free of charge. GMX.com reserves the right, at any time without notice, in its sole discretion, to cease support for the Application and to make the Application unavailable. In the event GMX.com does so, this Agreement and the license granted herewith is deemed immediately terminated.
2.3 The license is terminated effective immediately upon your violation of the terms of usage as outlined in this Agreement.
2.4 GMX.com may terminate all or any part of this Agreement and discontinue the availability and functionality of the Application or any aspect of it, and any customer support relating to the Application, at any time without notice to you .
2.5 You may terminate the Software License by discontinuing use of all or any of the GMX.com Software and by destroying all your copies of the applicable GMX.com Software.
3. No Warranties
The description and specifications of the Application are not warranties or guarantees of any particular characteristics or performance standards, and any such warranties or guarantees are expressly disclaimed.
4.1. NO WARRANTY. THE APPLICATION IS BEING DELIVERED TO YOU "AS IS" AND GMX.COM MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. GMX.COM DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OR WILL OBTAIN BY USING THE APPLICATION. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, GMX.COM MAKES NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
4.2. ANY MATERIAL OR SERVICE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE GMX.COM SOFTWARE (SUCH AS ANY ANTI-SPYWARE FEATURE) IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND/OR USE OF ANY SUCH MATERIAL OR SERVICE.
4.3. LIMITATION OF LIABILITY. IN NO EVENT WILL GMX.COM BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A GMX.COM REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. GMX.COM’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE APPLICATION, IF ANY. NOTHING CONTAINED IN THIS AGREEMENT LIMITS GMX.COM’S LIABILITY TO YOU IN THE EVENT OF DEATH OR PERSONAL INJURY RESULTING FROM GMX.COM’S NEGLIGENCE OR FOR THE TORT OF DECEIT (FRAUD).
In the event the Application contains, creates, or references links to other pages on the Internet, in order to provide the user with easier access to relevant information or services, the following applies: The linked pages are operated by third parties and GMX.com has no influence over the pages, their content, or the there-advertised or sold products or services. GMX.com has not reviewed these pages, and assumes no liability with respect to the linked pages.
Your login name will be used in line with the obligatory registration for the purpose of authentication. Moreover, any data accumulated when using the Application shall only be collected in an anonymous manner for the further improvement of the Application
7. Your Representations and Indemnification
By accepting this Agreement, you represent to GMX.com:
- That you are at least 18 years old and have full authority to enter into this Agreement;
- That the Application will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Application is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Application;
- That you will not use the Application in any manner that violates any applicable law;
You understand and agree that all rights to use the Application are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
You agree to indemnify and hold GMX.com harmless from any claim or demand, including reasonable attorneys' fees, made by any third party in connection with or arising out of your use of the Application, your violation of any terms or conditions of this Agreement, your violation of applicable laws, or your violation of any rights of another person or entity.
8. Third Party Software
The Application may contain software licensed by GMX.com from third party licensors (“Third Party Software”). You understand and agree that any Third Party Software is subject to the same restrictions contained in this Agreement relating to the Application and that you will not use such Third Party Software in violation of this Agreement. You further acknowledge and agree that such third parties can enforce their rights with respect to their Third Party Software under this Agreement against you directly in their own name.
GMX.com reserves the right to charge fees in the future for access or continued use and access to the Application. GMX.com shall notify you in advance of any fees or fee increases.
10. Other Terms and Conditions
10.1 This Agreement will be governed by and construed in accordance with the substantive laws in force in the Commonwealth of Pennsylvania. You and GMX.com hereby consent and agree that the United States District Court for Eastern District of Pennsylvania or the Common Pleas Court of Philadelphia County Pennsylvania will have exclusive jurisdiction over any legal action or proceeding arising out of or relating to this Agreement, and each party consents to the in personam jurisdiction of such Courts for the purpose of any such action or proceeding. Each party hereby waives all rights it has or which may hereafter arise to contest the exclusive jurisdiction of such courts. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
10.2. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This is the entire agreement between GMX.com and you relating to the Application and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Application.
26-Oct-2011, Version 1.1