CoolComment Editor Licence Agreement
The CoolComment Editor Software (the “Software”) is offered to you (hereinafter "you" or "User") by EglooMedia INC. (“EglooMedia”), the operator of CoolComment.com and any successor thereto (the “CoolComment Web Site”), subject to the terms and conditions of this CoolComment Editor License Agreement (the "Agreement").
Please read the Agreement carefully, because it is a legal contract and imposes obligations on you as a user of the Software, together with any and all enhancements, upgrades, and updates that may be provided to you in the future by EglooMedia.
BY CLICKING THE "I ACCEPT" BOX DURING THE DOWNLOAD PROCESS OF THE SOFTWARE, YOU WILL BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD SO INDICATE AT THE APPROPRIATE SCREEN AND PROMPTLY DISCONTINUE THE INSTALLATION AND DOWNLOAD PROCESS.
1.0 DESCRIPTION OF SOFTWARE.
The Software is a tool that assists Users in creating decorated comments for personal web pages and other web sites that allow for outside source (html) to be inserted in comment sections (the “Comments”).
2.0 LICENSE.
EglooMedia is making the Software available free through the CoolComment Web Site. EglooMedia grants you a limited, nonexclusive, nontransferable, nonsublicensable, and revocable right to use the Software during the time that this Agreement is in effect subject to your compliance with the terms and conditions of this Agreement. The Software is licensed to you for the sole purpose of engaging in personal, non-commercial use and provided that you do so in accordance with the terms and conditions of this Agreement. All rights relating to the Software that are not expressly licensed in this Agreement, whether now existing or which may hereafter come into existence, are reserved for EglooMedia. Without limiting the generality of the foregoing, you do not receive any rights to any patents, copyrights, trade secrets, trademarks or other intellectual property rights relating to or in the Software or any accompanying documentation. This license shall terminate immediately upon any violation by you of this Agreement.
3.0 PROHIBITED CONDUCT.
You represent and warrant that you will not violate any of the terms and conditions set forth in this Agreement, and that you will not, and will not permit others to: (a) reverse engineer, decompile, disassemble, derive the source code of, modify, or create derivative works from the Software; (b) use, copy, modify, alter, or transfer, electronically or otherwise, the Software except as expressly permitted in this Agreement; (c) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Software whether in a stand-alone configuration or as incorporated with other software code written by any party except as expressly permitted in this Agreement; (d) use the Software to engage in or allow others to engage in any illegal activity; (e) engage in use of the Software that will interfere with or damage the operation of the services of third parties by overburdening or disabling network resources through automated queries, excessive usage or similar conduct; (f) use the Software to engage in any activity that will violate the rights of third parties, including, without limitation, through the use, public display, public performance, reproduction, distribution, or modification of communications or materials that infringe copyrights, trademarks, publicity rights, privacy rights, other proprietary rights, or rights against defamation of third parties; (g) transfer the Software or utilize the Software in combination with third party software authored by you or others to create an integrated software program which you transfer to unrelated third parties; or (h) claim any sponsorship or endorsement by, or affiliation with EglooMedia or the CoolComment Web Site.
4.0 RELEASE AND INDEMNITY.
You agree to release, defend, indemnify and hold harmless EglooMedia, its officers, directors, employees, agents, independent contractors, attorneys, accountants, parent corporations, subsidiary corporations, affiliates, successors, and assigns, from and against any and all liability, claims, actions or demands by yourself or any other party resulting from or relating to your use or misuse of the Software. You waive all laws that may limit the efficacy of such a release or indemnity.
5.0 DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
THE SOFTWARE IS SUPPLIED "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE". YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EGLOOMEDIA DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, VIRUS-FREE OR ERROR-FREE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE AND AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EGLOOMEDIA BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE, MISUSE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BREACH OF CONTRACT, COPYRIGHT INFRINGEMENT OR OTHER INTELLECTUAL PROPERTY RIGHT, LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EGLOOMEDIA WILL IN NO EVENT BE LIABLE FOR DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY RELATED WITH YOUR USE OF THE SOFTWARE IN CONNECTION WITH SERVICES AVAILABLE FROM ANY OTHER WEB SITES OR THIRD PARTIES. EGLOOMEDIA EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE COMMENTS.
6.0 INTELLECTUAL PROPERTY.
By accepting this Agreement, you acknowledge that, as between you and EglooMedia, EglooMedia is the owner of all intellectual property rights in and to the Software including copyright, trademark, patent, trade secret and all other proprietary rights that are existing throughout the world.
The content on the CoolComment Web Site, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (the "Content") and the trademarks, service marks and logos contained therein, are owned by or licensed to EglooMedia, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Content is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. EglooMedia reserves all rights not expressly granted in and to the CoolComment Web Site and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of Comments of third parties obtained through the CoolComment Web Site for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the CoolComment Web Site or features that prevent or restrict use or copying of any Content or enforce limitations on use of the CoolComment Web Site or the Content therein.
7.0 YOUR COMMENTS.
EglooMedia does not claim any ownership rights in the Comments that you create using the Software (“Your Comments”). You retain all ownership rights in Your Comments and have the right to use Your Comments in any way you choose.
However, by using the Software you hereby grant EglooMedia a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, modify, reproduce, distribute, transmit, create derivative works of, display, perform and otherwise exploit Your Comments, including any ideas contained therein, in connection with the CoolComment Web Site and EglooMedia's (and its successors’ and assigns’) business, including without limitation for promoting and redistributing part or all of the CoolComment Web Site, by all means and in any media formats or through any media channels now known or hereafter developed.
By displaying or publishing Your Comments on or through the CoolComment Web Site, you hereby grant each User of the CoolComment Web Site a non-exclusive license to access Your Comments through the CoolComment Web Site, and to use, reproduce, distribute, create derivative works of, display and perform Your Comments as permitted through the functionality of the CoolComment Web Site and under this Agreement.
YOU AGREE THAT YOU SHALL HAVE NO RECOURSE AGAINST THE COOLCOMMENT WEB SITE OR EGLOOMEDIA (AND ITS SUCCESSORS AND ASSIGNS) FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHT IN YOUR COMMENTS.
YOU SHALL BE SOLELY RESPONSIBLE FOR YOUR COMMENTS AND THE CONSEQUENCES OF POSTING OR PUBLISHING THEM.
In connection with Your Comments, you affirm, represent and warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize EglooMedia to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all of Your Comments or any component thereof to enable inclusion and use of Your Comments in the manner contemplated by the CoolComment Web Site and this Agreement; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person appearing in Your Comments or any component thereof to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Comments in the manner contemplated by the CoolComment Web Site and this Agreement.
In connection with Your Comments, you further agree that you will not: (i) use, submit or post material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to use, submit or post the material and to grant EglooMedia all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage EglooMedia or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post or submit advertisements or solicitations of business: (v) impersonate another person.
EglooMedia does not endorse and has no control over any of Your Comments and expressly disclaims any and all liability in connection with Your Comments. EglooMedia makes no warranties, express or implied, as to Your Comments or to the accuracy and reliability Your Comments or any material or information that you transmit therein.
EglooMedia does not permit copyright infringing activities and infringement of intellectual property rights on the CoolComment Web Site, and EglooMedia will remove all Content and User Submissions if properly notified that such Content infringes on another's intellectual property rights.
8.0 NOTIFICATIONS OF INFRINGEMENT.
EglooMedia processes, investigates, and responds to notifications of alleged infringement in accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA (see 17 U.S.C § 512(c)(3) for further detail), EglooMedia will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. EglooMedia will terminate access for any Users who are repeat infringers. Notices of claimed infringement should be directed to:
Registered Copyright Agent, EglooMedia, INC., 1000 West Street, City of Wilmington, Country of New Castle, Delaware , U.S.A
E-mail Address: copyright@CoolComment.com
The words "Notice of Infringement" should be put in the subject line of all such notifications.
EglooMedia will respond to all other notifications of claimed infringement of intellectual property rights in accordance with applicable laws.
9.0 CHOICE OF LAW, JURISDICTION, AND VENUE.
This Agreement and any disputes hereunder will be governed in all respects by and construed in accordance with the laws of the State of New York, without reference to its conflict of laws rules. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. You and EglooMedia each agree to submit to exclusive personal jurisdiction and venue of the United States District Court for the Southern District of New York located in Manhattan for any disputes under or arising out of this Agreement, including any claim involving EglooMedia or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. In the case of such a dispute for which such court lacks subject matter jurisdiction you and EglooMedia each agree to submit to the exclusive personal jurisdiction and venue of the Supreme Court of the State of New York for the County of New York. The parties hereby waive any right or claim to jury trial with respect to any action brought in connection with this Agreement.
10.0 MODIFICATION.
EglooMedia reserves the right to modify or amend this Agreement at any time and for any reason or for no reason at all, in its sole discretion, without notice. Please check the CoolComment Web Site regularly for posting of amendments to this Agreement. EglooMedia will alert you that changes or revisions have been made by indicating at the bottom of this Agreement the date it was last revised.
11.0 TERM AND TERMINATION.
This Agreement is terminable at will by you or by EglooMedia for any reason or for no reason at all, in either your or EglooMedias' sole discretion. This Agreement shall terminate immediately upon any breach by you. Upon termination, you shall immediately destroy and discard all copies of the Software in your possession, custody or control. All provisions of this Agreement which by their nature extend beyond termination remain in effect until fulfilled and apply to respective successors and assigns.
12.0 PRIVACY.
Except as described herein, use of the CoolComment Web Site is governed by our Privacy Policy, a copy of which is located at [http://www.CoolComment.com/privacy/index.html].
13. U.S. EXPORT CONTROLS.
The Software is subject to United States export controls. The Software may not be downloaded from or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
14. CLAIM MUST BE FILED WITHIN ONE YEAR.
ANY CLAIM RELATED TO THIS AGREEMENT OR THE SOFTWARE MUST BE BROUGHT WITHIN ONE YEAR. THE ONE-YEAR PERIOD BEGINS ON THE DATE WHEN THE CLAIM FIRST COULD BE FILED. IF IT IS NOT, THEN SUCH A CLAIM IS PERMANENTLY BARRED. THIS APPLIES TO YOU AND YOUR SUCCESSORS AND TO EGLOOMEDIA AND ITS SUCCESSORS AND ASSIGNS.
15.0 MISCELLANEOUS.
This Agreement constitutes the entire agreement between you and EglooMedia concerning the Software. If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
Last Updated: December 6, 2006