Sympatico Security services end user license agreement

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THIS END USER LICENSE AGREEMENT, dated as of the date when you install the Software on your workstation, personal computer or other similar device (“CPU”) (the "Effective Date") between RADIALPOINT INC., a corporation registered at 2050 Rue de Bleury, Suite 300 Montreal, Quebec, H3A 2J5 (“RADIALPOINT”), and You as owner and/or lawful operator of the CPU and/or authorized user of End User Services enabled by the Software (“Licensee” or “You”) (collectively the “Parties” and each a “Party”).

BY CLICKING AN “ENTER”, “I AGREE” OR “I ACCEPT” OR ANY OTHER SIMILAR ICON OR BUTTON WHEN PROMPTED TO DO SO AT THE TIME OF ACCESSING, INSTALLING, DOWNLOADING OR COPYING THE SOFTWARE, OR BY ACTUALLY SIMPLY ACCESSING, INSTALLING, DOWNLOADING, COPYING OR OTHERWISE USING THE SOFTWARE, LICENSEE SHALL BE DEEMED TO HAVE IRREVOCABLY AGREED TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.  YOU AGREE THAT YOUR USE OF THE SOFTWARE AND/OR END USER SERVICES IS FURTHER LIMITED BY THE TERMS AND CONDITIONS OF YOUR AGREEMENT(S) WITH YOUR INTERNET SERVICE PROVIDER, BELL CANADA (THE “ISP”) (EACH AN “ISP AGREEMENT”).  YOU ACKNOWLEDGE AND AGREE THAT THE ISP AND ITS AFFILIATES,  AS DISTRIBUTORS OF THE SOFTWARE,  ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT WITH A RIGHT TO ENFORCE THE DISCLAIMER AND LIMITATIONS OF LIABILITY PROVISIONS CONTAINED IN THIS AGREEMENT.

1. LICENSE AND GOVERNING TERMS. Subject to the terms and conditions of this Agreement, RADIALPOINT hereby grants you, during the Term, a personal, non assignable, non sublicensable, non-exclusive, revocable, limited license to download, install and execute one copy of the applicable Software, in object code, on the CPU, solely for your personal use and strictly in relation to and for your use of End User Services. In addition to the terms and conditions of this Agreement, your use of the Software and/or access to End User Services will also be governed by any additional use terms that we may provide to you either with the relevant product or service or by publication on the World Wide Web at a site we identify to You or by some other reasonable means. It is your responsibility to make the CPU on which the Software is installed secure, and You may only provide access to the Software and any End User Services to yourself.  

2. CONSENT TO DATA AND INFORMATION GATHERING.  You acknowledge, agree and consent to the following: (i) the Software, in its default configuration, does not block ads from third parties or the ISP, and may not identify as spyware certain websites and applications from RADIALPOINT, the ISP or their business partners; (ii) RADIALPOINT has the right and does access the Software and/or your CPU for various purposes, including purposes related to this Agreement (e.g. including for the implementation of Updates) as well as to download, install and/or gather, obtain, collect and then use, for its business as well as the business of the ISP and/or its business partners, various information and data, including unique identifying, personal and other information such as, without limitation: the identity of a user's PC, the identity of the operating system, any relevant RADIALPOINT and/or ISP user/subscriber and other IDs, the versions of various Software downloaded and/or installed, other RADIALPOINT and/or ISP unique identifiers to allow targeted notifications, the status as to whether a user checked or unchecked the "Show security alerts" and other options, usage information in relation to the Software and End User Services, information as to which campaigns have been viewed and when and which links a user clicked on as a result of a campaign/notification, information as to when a user asked Software to download and/or install Software; and (iii) RADIALPOINT may share this information with third parties, and may also use such information to target advertisements about RADIALPOINT’s, the ISP’s and/or its business partners’ products and services and to send Licensee e-mails or messages.

3. NO SERVICES INCLUDED.  No End User Services, and no maintenance, technical support or other services are provided to You under this Agreement.  Any such services are subject to the execution of a separate written agreement on commercial terms. We have no obligation to provide any Updates to You.  Any Updates so provided to you under this Agreement in RADIALPOINT’s discretion will thereafter be part of the Software and governed by this Agreement.

4. OWNERSHIP.  As between the Parties, RADIALPOINT is, and shall remain, the sole and exclusive owner of all right , title and interest in and to the Software, the End User Services, all its systems, any and all RADIALPOINT trademarks and proprietary markings in or on the Software, the End User Services, its systems or its property, and in each case all related intellectual property and intellectual property rights (collectively, the "RADIALPOINT Property").  This is a license.  It is not a sale or a lease.  No property, ownership or real right or interest in the RADIALPOINT Property, or any component thereof, is granted, assigned, conveyed, transferred or sold to Licensee by virtue of this Agreement or otherwise. RADIALPOINT™ is a trademarks of Radialpoint Inc. This trademark may be registered in certain jurisdictions.

5. PROHIBITED USES. Save and except as expressly allowed in this Agreement or an ISP Agreement, Licensee has no rights with respect to the RADIALPOINT Property or any component thereof.  Without limiting the generality of the foregoing, Licensee shall not, directly or indirectly: (i) decompile, transform, modify, translate, disassemble, reverse engineer or otherwise attempt to decrypt or derive the source code, any trade secrets, or any sensitive or proprietary information of, or included in or related to the RADIALPOINT Property, (ii) modify, merge, alter, copy, distribute or otherwise reproduce or tamper with the RADIALPOINT Property or produce or create any other applications whatsoever or any derivative works thereof (except to the extent expressly permitted by applicable law despite this limitation), (iii) destroy or remove any copyright, trade secret, patent, trademark or other proprietary or legal markings or notices placed upon or contained within the RADIALPOINT Property or any supporting media, (iv) copy, rent, resale, lease, access, share, operate on a time share or service bureau basis, distribute as part of an ASP, VAR, OEM or other arrangement, the RADIALPOINT Property, (v) use or access the RADIALPOINT Property to publish, transfer, display, store, distribute or disseminate or otherwise transmit, load upon or make available anything (including any information, files, software, photographs, images, data or other content) that is inappropriate, inaccurate, illegal, unlawful, profane, defamatory, obscene, or indecent, or that is protected by or contravenes or violates any applicable laws or regulations, or any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software, program or device that may be damaging; or to damage, misappropriate, hack into or misuse the property of any Person, including the RADIALPOINT, or (vi) otherwise use the RADIALPOINT Property for unlawful, prohibited, illegal, inappropriate, offensive, damaging or otherwise unsuitable purposes, including in connection with activities involving pyramid schemes, chain letters, junk email, spamming, hacking, defamation, abuse, harassment, stalking, threatening or otherwise violating the rights of any Person.

6. TERM AND TERMINATION. Upon any termination: (a) all licenses hereunder shall terminate and Licensee shall immediately cease using the RADIALPOINT Property, and (b) all copies of the Software, any supporting materials, on whatever media, shall forthwith be destroyed by Licensee.

7. NO WARRANTY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY RADIALPOINT PROPERTY MADE AVAILABLE TO LICENSEE IS FURNISHED “AS IS”, AT LICENSEE’S RISKS AND PERILS, WITH ALL FAULTS AND WITHOUT REPRESENTATIONS, WARRANTIES, RIGHTS, OBLIGATION OR CONDITION OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, LEGAL, STATUTORY, CONTRACTUAL, EXTRA-CONTRACTUAL, DELICTUAL, OR IN TORT, WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATIONS WITH ONE ANOTHER, OR WHETHER ARISING AS RESULT OF THE NATURE OF THIS AGREEMENT OR IN CONFORMITY WITH USAGE, EQUITY OR LAW, OR OTHERWISE. WITHOUT LIMITATION, ANY AND ALL REPRESENTATIONS, WARRANTIES, OBLIGATIONS, RIGHTS OR CONDITIONS OF TITLE, OWNERSHIP, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, QUALITY, WORKMANSHIP, HIDDEN DEFECTS, PEACEFUL ENJOYMENT, SECURITY, DELIVERY AND GOOD STATE OF REPAIR, ARE DENIED, DISCLAIMED AND EXCLUDED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR, ISP AND EACH OF THEIR AFFILIATES DENY AND DISCLAIM ANY WARRANTY, RIGHT, OBLIGATION OR CONDITION, EXPRESS OR IMPLIED, CONCERNING THE PERFORMANCE, OPERATION OR FUNCTIONALITY OF ANY RADIALPOINT PROPERTY WHATSOEVER, ITS FITNESS FOR USE BY LICENSEE, THAT THE OPERATION OF THE RADIALPOINT PROPERTY WILL BE ERROR FREE OR UNINTERRUPTED OR THAT IT WILL PERFORM OR FUNCTION APPROPRIATELY OR PRODUCE A DESIRED RESULT, THAT THE RADIALPOINT PROPERTY MEETS LICENSEE’S REQUIREMENTS OR ANY OTHER REQUIREMENTS OR THAT IT WILL SATISFY ITS OR ANY PARTICULAR BUSINESS, TECHNOLOGICAL, SERVICE OR OTHER NEEDS OR REQUIREMENTS, THAT THE RADIALPOINT PROPERTY IS COMPATIBLE OR OPERATES IN COMBINATION OR WHEN USED IN CONJUNCTION WITH ANY SERVICES, SYSTEMS, NETWORKS, HARDWARE, PRODUCTS, SOFTWARE OR EQUIPMENT, OR THAT ANY DEFECTS, PROBLEMS, BUGS OR ERRORS OF THE RADIALPOINT PROPERTY COULD BE DETECTED AND/OR CORRECTED.

8. EXCLUSIVE REMEDY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE'S SOLE REMEDY IN RELATION TO OR UNDER THIS AGREEMENT SHALL BE FOR LICENSEE TO TERMINATE THE AGREEMENT.

9. EXCLUSION OF LIABILITY .  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR, ISP AND EACH OF THEIR AFFILIATES, HAVE NO LIABILITY WHATSOEVER TOWARDS LICENSEE, ITS AFFILIATES OR ANY OTHER PERSON OR ENTITY IN RELATION TO OR ARISING UNDER THIS AGREEMENT, THE SOFTWARE OR THE END USER SERVICES (INCLUDING WITHOUT LIMITATION, FOR BREACH OF CONTRACT, STRICT LIABILITY, CONTRACTUAL OR EXTRA-CONTRACTUAL LIABILITY, TORT, INCLUDING NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY), AND WHETHER IN RESPECT OF DIRECT, GENERAL, INCIDENTAL, AGGRAVATED, PUNITIVE, TREBLE, EXEMPLARY, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS REVENUE, LOST PROFITS, LOST GOODWILL, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. MISCELLANEOUS. Additional Definitions. For the purposes of this Agreement, "Software" means any RADIALPOINT software product or tool (which may include anti-virus, firewall, anti-spyware, anti-phishing, parental control, cookie manager, scan & clean, client gateway, keyword alert, form filler, privacy manager and ad/pop-up related software products or tools, or other End User Services-related software products, in each case which may include third party software), including existing end user documentation and Updates, if any, provided to Licensee in RADIAPOINT’s discretion; “Update” means, bug fixes, workarounds, patches, or maintenance updates, as well as major changes, new versions or releases in respect of any Software; “End User Services” means RADIALPOINT-powered services that are purchased by You from the ISP directly pursuant to an ISP Agreement, which services may be accessed remotely by Licensee from RADIALPOINT’s servers and systems, whether directly or through the ISP or a third party; and whenever used in this agreement, “including” or “includes” means “including (or includes) without limitation” and “you” means Licensee, and “we” or “us” means RADIALPOINT. Transfer and Assignment. RADIALPOINT may assign this Agreement, in whole or in part, to any person or entity without Licensee’s prior consent, which assignment shall operate novation; Licensee may not assign this Agreement to any person or entity, in whole or in part; this Agreement shall inure to the benefit of and be binding upon the Parties hereto and their permitted assigns. Survivorship . The Sections of this Agreement regarding restrictions on use, ownership, confidentiality, no warranties and disclaimers, exclusions of liability, effects of termination and miscellaneous, and any other provisions which by their nature survive the termination or expiry of this Agreement, will survive any termination or expiration of this Agreement. Applicable Law and Jurisdiction. This Agreement shall be governed by Ontario law.  The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  The courts of the Province of Ontario and the Federal Court of Canada, as applicable, shall have sole and exclusive jurisdiction over any action, claim, demand, proceeding or lawsuit whatsoever arising under or in relation to this Agreement or its subject matter, except that RADIALPOINT may seek injunctive relief or any other equitable remedy with respect to any violation, breach or infringement of intellectual property or confidential information related rights or obligations in any appropriate jurisdiction. Compliance with Law. Each Party shall perform its obligations and exercise its rights hereunder in compliance with all applicable laws and regulations.  All Software shall be deemed to be subject to U.S. and Canadian export controls and restrictions (including end‑user, end‑use and destination restrictions), and You will comply with all such controls and restrictions, including the U.S. Export Administration Regulations, the Export and Import Permits Act (Canada), and any other related, relevant or applicable export controls or restrictions.  The Software is provided with RESTRICTED RIGHTS. If used or acquired by the United States Government, the Government acknowledges that (a) the Software constitutes "commercial computer software" or "commercial computer software documentation" for purposes of FAR 48 C.F.R. 12.212 and DFAR 48 C.F.R. 227.7202-3, as applicable and (b) use, duplication, or disclosure by the 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 and such use, duplication or disclosure of the Software is limited to those specifically granted to the Licensee pursuant to this Agreement. The manufacturer is RADIALPOINT at the address on the first page of this Agreement. Open Source and/or Third Party Software. Portions of the Software include software developed by  and/or proprietary to the following and may be subject to additional terms and conditions published by such Persons: (i) OpenSSL Project for use in the OpenSSL Toolkit (http://www.openssl.org/); Copyright ©  1998-2001 The OpenSSL Project, all rights reserved; (ii) CMemDC - memory DC; Author: Keith Rule; Email: keithr@europa.com; Copyright © 1996-1997, Keith Rule, all rights reserved; (iii) bzip2 and associated library libbzip2, Copyright © 1996-2000 Julian R Seward, all rights reserved; (iv) gSOAP software; portions created by gSOAP are Copyright © 2001-2004 Robert A. van Engelen, Genivia inc., all rights reserved; (v) Pest Patrol, Inc., Copyright © 2003 PestPatrol, Inc., all rights reserved; and (vi) Command Software Systems, Inc., Copyright © 2003, all rights reserved; (vii)  Daniel Stenberg, daniel@haxx.se, Copyright © 1996 - 2005, all rights reserved; (viii) Jean-Philippe Barrette-LaPierre, Copyright © 2002-2004, all rights reserved; (ix) Thai Open Source Software Center Ltd, Copyright © 1998, 1999, 2000, all rights reserved; (x) The Apache Software Foundation (http://www.apache.org/), Copyright © 1999, all rights reserved (The names "log4j" and "Apache Software Foundation" must not be used to endorse or promote products derived from this software without prior written permission. For written permission, please contact apache@apache.org.; Products derived from this software may not be called "Apache", nor may "Apache" appear in their name, without prior written permission of the Apache Software Foundation); (xi) Raxco Software, Inc. Copyright © 2006 Raxco Software, Inc. all rights reserved; and (xii) Xceed Software, Inc. Copyright © 1995-2004 Xceed Software Inc., all rights reserved. Language. It is the express wish of the Parties hereto that this Agreement be drafted in English.  Les parties ont expressément demandé que ce contrat soit rédigé en anglais.

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