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Appendix 1: Zango End User License Agreement

Zango, Inc. End User License Agreement [Zango, 2007]

NOTICE TO USER: THIS END USER LICENSE AGREEMENT (``EULA'' or ``AGREEMENT'') APPLIES WITH RESPECT TO SOFTWARE APPLICATIONS AND DIGITAL CONTENT OWNED AND PROVIDED BY ZANGO, INC. AND ITS SUBSIDIARIES (REFERRED TO IN THIS AGREEMENT AS ``WE'' OR ``ZANGO'') FROM ANY ZANGO WEBSITE. THIS AGREEMENT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR USE OF ANY ZANGO SOFTWARE (DEFINED IN SECTION 1 BELOW), BUT SHALL NOT GOVERN YOUR USE OF ANY OTHER SOFTWARE (DEFINED IN SECTION 3 BELOW). PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ``ACCEPT,'' ``FINISH,'' ``CONTINUE'' OR A SIMILAR ACKNOWLEDGMENT BELOW, OR BY USING ALL OR ANY PORTION OF THE ZANGO SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE ZANGO SOFTWARE.

Special Notice for Non-English Speakers:

The Zango Software is suited primarily for the use of English speakers and, therefore, this Agreement is written in English and is addressed to English speakers. If you are not proficient in English and feel that you cannot properly understand this Agreement, we recommend that you either retain the help of an English speaker to help you understand and accept the terms of this Agreement or, alternatively, refrain from installing or using the Zango Software. In any event, if you choose to install or Use the Zango Software, you will be bound by this Agreement and the Privacy Policy incorporated herein.

Special Notice for Residents of the State of Alaska, USA:

The Zango Software may be prohibited by Alaska law. Therefore, by installing or Using the Zango Software, you represent and warrant that your computer is not located in the state of Alaska. To the extent that our systems are able to recognize that your computer is located in the state of Alaska, we will not enable you to install the Zango Software.

Notice for All Users:

By installing the Zango Software, you get free access to sponsored content available on the Internet and other software applications. The Zango Software will show you a limited number of ads that pop up on your screen in a separate browser and/or in a Slider format similar to an Instant Messaging notification. The ads are based on keywords from the websites you visit. Please note that you may receive Adult-oriented ads if you utilize keywords connected to, search for or view Adult websites. See Section 7.2 below for more details. Please also note that, depending on your browser version, Zango may become the default search provider. Once installed and running, you can access the Zango Software from your system tray, and you can uninstall it at any time by using the Add or Remove Programs feature of Microsoft Windows. Please see Section 3 below for important terms and conditions regarding other software applications distributed by Zango.

1. Definitions. ``Zango Software'' means (a) the Search Assistant (as described in Section 7), the Zango Outlook Toolbar Software (as described in Section 8), the Spam Blocker Utility Software or any other software or digital content owned and provided by Zango, that accompanies this Agreement; and (b) any bug fixes, upgrades, modified versions or updates to the Zango Software (collectively referred to as ``Updates'') that we subsequently provide to you. ``Use,'' ``Used'' or ``Using'' means to access, install, download, copy or benefit from using the functionality of the Zango Software.

2. Owner of Computer; All Users Bound; Age Limitation; Software License. You represent and warrant either that you are the owner of the computer and that you have authorized the download and installation of the Zango Software or that the owner of the computer has authorized you to do so. You agree, with respect to all users of the computer on which you have caused the Zango Software to reside, to provide a copy of these terms and conditions and to obtain their consent to these terms and conditions before allowing them to Use the Zango Software. Alternatively, if you have the legal right to accept this Agreement on behalf of one or more users of the computer on which you have caused or authorized the Zango Software to reside, then you hereby accept this Agreement on behalf of all such other users. You understand that the presence of the Zango Software on any computer is voluntary and that you may remove it at any time. You must be at least 18 years of age to Use the Zango Software. By accepting the terms of this Agreement and Using the Zango Software, you represent that you are over the age of 18. As long as you comply with, and subject to, the terms of this Agreement, Zango grants to you a non-exclusive, revocable license to Use the Zango Software, in binary executable form only, solely for the purposes described in this Agreement.

3. Other Software. In addition to the Zango Software, you will also be given the opportunity to access, download and/or use the technologies, services and/or content owned by third parties (collectively, ``Other Software''). If you choose to access or use such Other Software, you acknowledge and agree that your rights to such Other Software are governed solely by the license terms and conditions accompanying the Other Software. For example, you may be required to click and accept additional end user license terms (``Other EULA'') prior to the download, installation, copying or use of such Other Software. The Other EULA governs your use of Other Software, and not the terms of this Agreement. However, such Other EULA shall not affect any terms in this Agreement or your use of the Zango Software. You further agree that Zango is not responsible for any loss or damage of any sort incurred as a result of your download, installation, or use of Other Software, and you hereby waive and hold Zango harmless from any losses arising under any claim you may have against Zango with respect to Other Software.

4. Restrictions. You will: (a) not reverse engineer, disassemble or decompile the Zango Software or attempt to discover or recreate the source code to the Zango Software, except as otherwise required by applicable law, (b) comply with all applicable laws, including U.S. export control laws, in your Use of the Zango Software, (c) not make any modification, adaptation, improvement, enhancement, translation or derivative work of or to the Zango Software, (d) not remove, alter or obscure any proprietary notices (including copyright notices) of Zango or its licensors in the Zango Software, (e) not Use the Zango Software for purposes for which it is not designed, and (f) only Use the Zango Software for personal, non-commercial use.

5. Intellectual Property Rights. The Zango Software is the intellectual property of, and owned by Zango and its licensors and suppliers. The structure, organization and code of the Zango Software are the valuable trade secrets and confidential information of Zango and its licensors and suppliers. The Zango Software is protected by copyright, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Zango Software by implication, estoppel or any other legal theory, and all rights not expressly granted in this Agreement are reserved by Zango and its assigns, licensors and suppliers.

6. Third Party Code; Notice and Attribution. The Zango Software includes third party software subject to open source license terms, including, without limitation, the following applications: Encryption Engine, Compression Algorithm, PCRE, and Firefox Plug-in Modules, and NSIS Toolkit and Plug-ins. All rights are reserved by the licensors of such code and ownership is attributed as follows:

Encryption Engine: Copyright (c) 2002, Dr Brian Gladman brg@gladman.me.uk, Worcester, UK.

Compression Algorithm: Copyright (c) 1995-2002 Jean-loup Gailly and Mark Adler.

PCRE: THE BASIC LIBRARY FUNCTIONS Written by: Philip Hazel Email local part: ph10, Email domain: cam.ac.uk University of Cambridge Computing Service, Cambridge, England. Copyright (c) 1997-2007 University of Cambridge All rights reserved. THE C++ WRAPPER FUNCTIONS Contributed by: Google Inc. Copyright (c) 2007, Google Inc.

Firefox Plug-ins: (c) 1998 Netscape Communications Corporation. All Rights Reserved.

NSIS Toolkit and Plug-ins: Copyright (c) 1995 – 2007 Contributors as identified at http://nsis.sourceforge.net/Main_Page.

Reference to copyright ownership is for attribution purposes only and in no event shall be deemed an endorsement by such owners of the Zango Software.

You acknowledge and agree that your right to use these publicly available components of the Zango Software is governed by the terms applicable to each application. In the event of any conflict with the express terms of this Agreement, the terms of such publicly available license shall control your use of the relevant application. In no event shall the Zango Software be deemed ``open source'' or ``publicly available'' software.

7. Important Information Regarding Zango Search Assistant Zango Software. If the Zango Software consists of Zango Search Assistant (the ``Search Assistant Zango Software''), then the following terms and conditions apply to you:

7.1. Functionality. The Search Assistant Zango Software recognizes keywords from your Internet browser to display relevant contextual advertisements. These advertisements may be displayed on your computer screen at any time while you are searching and shopping online (and not necessarily while you are using any product or service related to or downloaded with the Search Assistant Zango Software); the ads pop-up on your screen in a separate browser and/or are displayed in a Slider format similar to an Instant Messaging notification.The Search Assistant Zango Software neither stores any personally identifiable information nor records your browsing behavior. Please refer to Section 12 (below) for further information about our privacy policies.

7.2. Display of Advertising. The Search Assistant Zango Software starts automatically when you start your computer, runs in the background on your computer, displays an icon in your system tray while running, and may periodically direct you to our sponsors' websites and/or show you other advertisement form factors (including the Slider format). By installing and/or using the Search Assistant Zango Software you grant permission for Zango to periodically show you advertisements. The frequency of these advertisements (which will, for example, pop up on your screen in a separate browser and/or be displayed in a Slider format similar to an Instant Messaging notification) will be limited. Depending on Internet activity, active users may see about five (5) ads per day; some may see more, some may see fewer. To see a representative example of an advertisement that may be displayed, go to http://corporate.zango.com/info/examples.aspx, which is incorporated herein by reference. On occasion, you may search for a website and receive an error from your browser software indicating that the site cannot be found. When this occurs, the Search Assistant Zango Software includes a function that may redirect your web browser to our sponsor's websites based on the content of the website address, or URL, which you entered. You hereby consent to these actions. Please note that you may receive ads for Adult-oriented websites if you utilize keywords connected to, search for or view Adult websites. An Adult website is one that contains or references (whether via audio, video, audiovisual, images, sounds or text) any of the following: profanity, violence, blood and gore, weapons, use of alcohol, drugs, tobacco, online gambling, pornography, erotica, erotic images, nudity, sex, sexually explicit images, and sexual references. Zango does not permit ads that are themselves pornographic, nor does it permit advertisements for online ``pay-for-play'' gambling in the United States, Singapore, Australia, Israel or New Zealand. More generally, Zango does not permit ads promoting illegal products or illegal practices. If you believe you have received an ad that violates these prohibitions, please contact us at the web or street address listed in the last section of this EULA. We request that you enclose a screenshot of the ad (including its ad label) in your communication to us. For information on how you may be able to restrict certain types of sites and advertisements from opening in your browser, go to http://corporate.zango.com/info/contentrestriction.aspx.

7.3. Identification of Advertisements. The advertisements that the Search Assistant Zango Software presents (including those provided in a separate browser window and displayed as Slider ads) are not endorsed by or affiliated with the websites that trigger their appearance. Advertisements that the Search Assistant Zango Software presents are branded with a Zango brand name in, for example, the browser window or in a conspicuous line of text at the bottom of a Slider ad so you will know that they are brought to you by Zango and the Search Assistant Zango Software and not by the Web pages you may be viewing when the advertisements are displayed.

8. Important Information Regarding Zango Outlook Toolbar Software. If the Zango Software consists of the toolbar for Microsoft Outlook/Outlook Express software (the ``Zango Outlook Toolbar Software''), then the following terms and conditions apply to you:

8.1. Display of Advertising. By installing and/or using the Zango Outlook Toolbar Software, you grant permission for Zango to display a hyperlink in your email that will allow your email recipient(s) to link to Zango and sign up for services provided by Zango, if your email recipient so chooses.

9. Uninstallation. You understand and agree that the presence of the Zango Software on your computer is voluntary and that you may remove the Zango Software from your computer at any time. The Zango Software may be uninstalled by going to the ``Add or Remove Programs'' menu on your computer and clicking the ``Remove'' button next to the entry for the Zango Software. Specifically, to uninstall the Zango Software, please follow these steps: 1. Go to Start menu; 2. Select Control Panel; 3. Select Add or Remove Programs; 4. Select the Zango Software; 5. Click Change/Remove. You may be required to restart your computer in order for the uninstallation to take effect. Please note that the above is the only proper way to ensure complete removal of all Zango Software files – many security application or other software tools do not completely or properly remove the Zango Software. Some Internet content and software publishers, including Zango, require that their users have certain of the Zango Software (including the Search Assistant Zango Software) installed on their computer in order to access their content or use their software applications (``Content Providers''). Uninstallation of such Zango Software may impact your ability to access such content and/or use such software.

10. Updates. Zango, in its sole discretion, may provide you with Updates to the Zango Software as part of this Agreement. The Zango Software will automatically check with Zango for the existence of any Update that Zango has released, and in the event that one is available, the Zango Software will update itself automatically. Nothing herein shall be construed or interpreted as requiring that Zango provide Updates. Zango will not install any new software or Update that in our reasonable judgment has functionality that is materially different from the functionality of the previously installed Zango Software without your prior consent.

11. Disclaimer of Warranties and Remedies; Indemnity.

11.1. No Warranty; Disclaimer. YOUR USE OF THE ZANGO SOFTWARE IS AT YOUR SOLE RISK. THE ZANGO SOFTWARE IS PROVIDED ON AN ``AS IS'' AND ``AS AVAILABLE'' BASIS. ZANGO, AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ZANGO, AND ITS LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT (i) THE ZANGO SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE ZANGO SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE ZANGO SOFTWARE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE ZANGO SOFTWARE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE ZANGO SOFTWARE WILL BE CORRECTED. ANY OTHER SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED VIA ZANGO SOFTWARE OR THE USE OF THE ZANGO SOFTWARE ARE OBTAINED AND USED AT YOUR OWN DISCRETION AND RISK AND ZANGO EXPRESSLY DISCLAIMS ALL WARRANTIES IN AND TO SUCH OTHER SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE ZANGO SOFTWARE, INCLUDING OTHER SOFTWARE, IS OBTAINED 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 OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZANGO OR THROUGH OR FROM THE ZANGO SOFTWARE SHALL CREATE ANY WARRANTY.

11.2. Limitation of Damages. NEITHER ZANGO NOR ANY OF ITS LICENSORS OR SUPPLIERS WILL HAVE ANY, AND YOU RELEASE ZANGO AND ALL OF ITS LICENSORS AND SUPPLIERS FROM ANY, LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE) FOR ANY DAMAGES SUSTAINED BY YOU ARISING FROM THE USE OR INABILITY TO USE THE ZANGO SOFTWARE OR THE OTHER SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA, SAVINGS, OR PROFITS OR THE COST OF PROCURING SUBSTITUTE GOODS, EVEN IF ZANGO OR ANY OF ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ZANGO'S OR ANY OF ITS LICENSORS' OR SUPPLIERS' ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED FIVE HUNDRED UNITED STATES DOLLARS ($500.00US). THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THIS AGREEMENT.

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.

Any representations made with respect to, and support or assistance offered by Zango in connection with, the Zango Software are offered by Zango only and not by any third party providing open source to Zango.

12. Use of Information. By installing the Zango Software, you grant permission for Zango to collect and use certain information. You acknowledge that you have reviewed the Zango Privacy Policy, which describes Zango's practices with respect to the collection, use and disclosure of information in connection with your Use of the Zango Software. A copy of the Privacy Policy is available at http://corporate.zango.com/privacy.aspx. Zango reserves the right to change the provisions of its Privacy Policy from time to time. Zango will post any changes to the Privacy Policy at the web address in the preceding sentence. Your Use of the Zango Software following the posting of such changes to the Privacy Policy will constitute your acceptance of any such changes.

12.1. Infringement Reporting Procedure. Zango shall not be responsible for Other Software and/or content hosted by non-Zango content providers. However, if you are aware of any infringing or illegal content hosted by a site that utilizes the Zango Software as an access control mechanism, please refer to Section 8 of Zango's Terms of Use located at http://corporate.zango.com/terms.aspx, and follow the instructions therein to report such infringing activities.

13. Compatibility. Zango does not warrant that the Zango Software will be compatible with your hardware or other software installed on your computer system. Compatibility issues may cause your computer's performance to suffer. In the event that the Zango Software is not compatible with your hardware or other software installed on your computer system, the Zango Software can be uninstalled by going to the ``Add or Remove Programs'' menu on your computer and clicking the ``Remove'' button next to the entries for Zango. Please refer to Section 9 (above) for detailed uninstall directions. Like all software, the Zango Software utilizes some of your computer's resources to run, including system memory and Internet connection. Use of the Zango Software on a computer with inadequate system resources will cause such computer's performance to suffer.

14. User Representations and Warranties. You acknowledge, represent and warrant that (a) you own the computer on which you are installing the Zango Software, or have the authority to install the Zango Software on such computer; (b) your installation and/or Use of the Zango Software will not violate any local, state or federal laws that apply to you or to the Use or installation of the Zango Software; and (c) Zango is not causing the Zango Software to be installed on your computer, but has provided the Zango Software to you, which you are installing of your own volition.

15. Indemnification. You agree to defend, indemnify, and hold harmless Zango, its licensors and suppliers, and each of their respective officers, directors and employees, from and against any lawsuits, claims, losses, damages, fines and expenses (including attorneys' fees and costs) arising out of your use of the Zango Software or your breach of this Agreement.

16. Export. You agree that the Zango Software may not be acquired, shipped, transported, exported, or re-exported (a) into (or to a national or resident of) any U.S. embargoed country or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. By using the Zango Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

17. Governing Law; Dispute Resolution. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, U.S.A., without regard to its choice of law principles to the contrary. Any controversy, dispute or claim arising out of or relating to this Agreement or breach thereof shall be resolved by binding arbitration administered by Judicial Arbitration and Mediation Services, Inc. pursuant to its Comprehensive Arbitration Rules and Procedure (the ``Rules''), except as otherwise provided herein. Arbitration shall be the exclusive method of resolving any controversy, dispute or claim arising out of or relating to this Agreement. Any arbitration conducted hereunder shall take place in Seattle, Washington. Judgment on any arbitration award may be entered in any court having jurisdiction. The arbitrator's fee and other expenses of the arbitration process shall be shared equally. The parties shall bear their own respective costs and attorneys' fees. Washington law, to the extent permitted, shall govern all substantive aspects of the dispute and all procedural issues not covered by the Rules. Nothing in this section shall prohibit Zango from seeking injunctive relief before an appropriate court to the extent necessary to protect its rights pending resolution of the dispute in accordance with the foregoing provisions.

18. United States Government End Users. If you are an end user acting on behalf of the United States Government (``U.S. Government''), the Zango Software is provided to you with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as 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 CFR 52.227-19, as applicable. Manufacturer is Zango, Inc., 3600 136th Place SE, Bellevue, WA 98006 USA.

19. Miscellaneous. This is the entire agreement between Zango and you relating to the Zango Software, and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Zango Software. If any part of this Agreement is held by a court to be illegal, invalid or unenforceable, it will not affect the validity of the balance of the Agreement, which will remain valid and enforceable according to its terms. This Agreement may only be modified by a writing signed by an authorized officer of Zango. If you violate any term of this Agreement, Zango may terminate this Agreement without waiving any other rights. This Agreement is assignable by Zango. You may not assign your rights and obligations under this Agreement.

20. Contact Us. If you have any questions about the Zango Software, you should first consult our website http://www.zango.com. This site includes links to company information, answers to frequently asked questions, and all of Zango's current policies. If you have further questions or concerns, please contact us at http://corporate.zango.com/support/contact.aspx or write to Zango Support, 3600 136th Place SE, Bellevue, WA 98006.


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Next: Appendix 2: Fair End Up: main Previous: Conclusions   Contents
Catherine Flick 2010-02-03