1.LICENSE GRANT. Subject to your continued compliance with this Agreement, xAd provides to you a single, revocable, limited, non-exclusive, non-transferable, and non-sublicensable license to access and use Discovery during the term of this Agreement on your (and a single) personal computer, laptop, mobile phone or other mobile computing device and only for personal or internal business purposes. The content layout, formatting, and features of and online or remote access processes for Discovery shall be as specified by xAd in its sole discretion. You also acknowledge and agree to the following: (i) xAd has the right to control and direct the means, manner, and method by which Discovery is provided; (ii) xAd may, from time to time engage independent contractors, consultants, or subcontractors to aid xAd in providing Discovery or use thereof; and (iii) xAd has the right to provide Discovery to others.
2.RESTRICTIONS ON USE. All rights not expressly granted under this Agreement are hereby reserved to xAd. Accordingly, you are hereby prohibited from using Discovery in any manner that is not expressly and unambiguously authorized by this Agreement. You therefore may not modify, reproduce, duplicate, copy, download, store, further transmit, disseminate, transfer, disassemble, broadcast, publish, remove or alter any proprietary notices or labels, license, sublicense, sell, mirror, frame, rent, lease, private label, grant a security interest in, create derivative works of, or otherwise exploit Discovery, or any portion of Discovery without xAd’s prior written consent except as expressly and unambiguously authorized herein. Moreover, you may not (a) use any “deep link,” “page scrape,” “robot,” “spider,” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of Discovery or in any way reproduce or circumvent the navigational structure or presentation of Discovery to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through Discovery, (b) attempt to gain unauthorized access to any portion or feature of Discovery or any other systems or networks connected to Discovery or to any xAd server or to any of the services offered on or through Discovery, by hacking, password “mining,” or any other illegitimate or prohibited means, (c) probe, scan, or test the vulnerability of Discovery or any network connected to Discovery, nor breach the security or authentication measures on Discovery or any network connected to Discovery, (d) reverse look-up, trace, or seek to trace any information on any other user of or visitor to Discovery, (e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of Discovery or xAd’s systems or networks or any systems or networks connected to Discovery, (f) use any device, software, or routine to interfere with the proper working of Discovery or any transaction conducted on Discovery, or with any other person’s use of Discovery, (g) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to xAd on or through Discovery, or (h) use Discovery in an unlawful manner.
3. ATTRIBUTION. In order to reflect xAd’s ownership of Discovery and to protect xAd’s interests therein, you shall ensure that proper attribution and notice appears with any use of Discovery. You shall also undertake to ensure (retain or include) a notice with the following information, “Copyright © xAd, Inc.” and such other information as designated by xAd, appears in connection with any printout or screenshot.
4. USER OBLIGATIONS. By downloading, accessing, or using Discovery, you represent and warrant that you will abide by all applicable local, state, national laws and regulations with respect to your use of Discovery and that you are at least the legal age of majority. In addition, you agree to assume all responsibility concerning your use of Discovery, including being held responsible for any and all activity occurring through your username and password (and the related account access). You further represent and warrant that (i) you will at all times provide true, accurate, current, and complete information (and updates thereto) when submitting information to xAd through Discovery; and (ii) you will at all times comply with the terms and conditions of this Agreement. Moreover, by installing, accessing, or using Discovery, you agree to allow xAd to collect certain information regarding your use of Discovery (including, without limitation, certain data regarding feature utilization, navigation, and personal information (e.g., name, email, etc.), and further agree to provide xAd reasonable cooperation in connection with operation of or support for Discovery. You also agree to receive electronic communications from xAd. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to Discovery or xAd’s services. These electronic communications are part of your relationship with xAd and you receive them as part of your use of Discovery. You therefore hereby agree that any such notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements.
5. ACCOUNT. You may be required to register to use Discovery. Each registration is for a single user only, unless otherwise expressly agreed upon by xAd. Registration for access to and use of Discovery may also require access credentials, such as a user name and a password, or adherence to other particular access requirements as designated by xAd in its sole discretion from time to time. You hereby agree to consider your access credentials, such as a user name and password, as confidential information and not to disclose such information to any third party without the prior express written consent of xAd, which may be withheld in its sole discretion. You shall immediately notify xAd if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password. xAd will not be liable for any loss or damage arising from your failure (whether inadvertent or intentional) to comply with these obligations.
6.FEEDBACK. xAd welcomes your feedback and suggestions about xAd’s products or services or with respect to how to improve Discovery. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to xAd, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to xAd and enable xAd to use such Feedback. In addition, any Feedback received xAd will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license from you for xAd to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist therein, and you hereby waive any claim to the contrary.
7.LINKS TO OTHER SITES. Discovery may connect to certain third party websites or online networks (collectively, “Third Party Sites”). These Third Party Sites have not necessarily been reviewed by xAd and are owned, controlled and/or maintained solely by third parties over whom xAd exercises no control. Your correspondence or any other dealings with third parties found through any Third Party Site on Discovery is solely between you and such third party. Accordingly, xAd hereby expressly disclaims and shall not have any liability or responsibility for any Third Party Sites.
8.MOBILE SERVICES. Discovery offers various tools or display functionality that are available to you via your mobile phone or other mobile computing device (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices or in all locations. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices; what restrictions, if any, may be applicable to your use of the Mobile Services; and how much such use will cost you. Nevertheless, all use of Discovery shall be strictly in accordance with this Agreement.
9.PROPRIETARY RIGHTS. This Agreement provides only a limited license to access and use Discovery in accordance with the terms of this Agreement. Accordingly, you hereby agree that xAd transfers no ownership or intellectual property interest or title in and to Discovery or any other xAd intellectual property to you or anyone else in connection with your use of Discovery. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through Discovery are exclusively owned, controlled, and/or licensed by xAd, Inc. or its licensor(s) or affiliate(s). XAD, DISCOVERY, and all other marks identifying the products or services of xAd are proprietary trademarks of XAd, Inc., and any use of such marks, including, without limitation, as domain names, account identifiers, or in connection with any search engine optimization practice(s), without the prior express written permission of xAd is hereby strictly prohibited.
10.CONFIDENTIALITY. You acknowledge and agree that Discovery contains proprietary trade secrets and confidential or nonpublic information of xAd and/or its licensors (the “Confidential Information”). You agree to secure and protect the confidentiality of the Confidential Information of xAd (and/or its licensors) in a manner consistent with the maintenance of xAd’s rights therein, using at least as great a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.
12.DISCLAIMER. DISCOVERY IS PROVIDED ON AN “AS-IS” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. XAD HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. XAD ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT DISCOVERY WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR PARTICULAR REQUIREMENTS AND/OR NEEDS. THEREFORE, YOU ASSUME THE ENTIRE RISK REGARDING THE QUALITY AND/OR PERFORMANCE OF DISCOVERY.
13.LIMITATION OF LIABILITY. YOU ALSO EXPRESSLY ABSOLVE AND RELEASE XAD FROM ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND XAD’S CONTROL, INCLUDING, BUT NOT LIMITED TO, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER CONNECTION PROBLEMS, COMPUTER VIRUSES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES, OR NATURAL DISASTERS, STRIKES, OR OTHER LABOR PROBLEMS, WARS, OR GOVERNMENTAL RESTRICTIONS. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL XAD BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DEALINGS OR AGREEMENTS BETWEEN YOU AND A THIRD PARTY, THE USE OF DISCOVERY, WITH THE DELAY OR INABILITY TO USE DISCOVERY, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE THROUGH DISCOVERY, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF XAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF XAD FOR ANY REASON WHATSOEVER RELATED TO USE OF DISCOVERY SHALL NOT EXCEED $500 (US) OR THE AMOUNT PAID BY YOU TO XAD (FOR USE OF DISCOVERY) DURING THE TWELVE (12) MONTHS PRECEDING ANY CLAIM, WHICHEVER IS GREATER.
14.INJUNCTIVE RELIEF. You acknowledge that any breach, threatened or actual, of this Agreement, including, without limitation, violations or infringement of xAd’s intellectual property or proprietary rights, may cause irreparable injury to xAd, whereby such injury would not be quantifiable in monetary damages, and xAd would not have an adequate remedy at law. In the event of such injury or potential for such injury you therefore hereby agree that xAd shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement.
15.SECURITY & ENFORCEMENT. Any actual or attempted use of Discovery by you in violation of this Agreement may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. xAd reserves the right in its sole discretion to review, monitor, and/or record any information relating to your use of Discovery (“User Information”) without any prior notice to or permission from you, including, without limitation, by archiving content and/or communications submitted to and/or sent by you through Discovery. xAd may share any User Information we obtain from you with any law enforcement organization in connection with any investigation or prosecution of possible criminal or unlawful activity. xAd will also disclose User Information as required by any court order and/or subpoena. In addition, xAd hereby reserves the right in its sole direction to at any time and without notice modify, suspend, terminate, and/or interrupt operation of or access to Discovery, or any portion thereof, in order to protect Discovery, xAd intellectual property, xAd, or the business interests of xAd and/or its members and affiliates.
16.GOVERNING LAW. This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of New York as applied to agreements entered into and completely performed in the State of New York. You agree to the personal jurisdiction by and venue in any federal or state court in the State of New York, County of New York and waive any objection to such jurisdiction or venue and further to a jury trial in any action. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. Any claim you might have against xAd must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. In any legal proceeding brought by xAd, xAd shall have the right to seek and be awarded all reasonable attorneys’ fees and costs in addition to any other relief, at law or in equity, to which xAd may be entitled. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other documents and records originally generated and maintained in printed form. Please print a copy of this Agreement or contact xAd if you wish to receive a printed copy of this Agreement.
17.TERM AND TERMINATION. This Agreement will take (re-take) effect at the time you click “I ACCEPT”, download Discovery or begin using Discovery, whichever is earliest. This Agreement will terminate automatically if (i) you fail to comply with any of its terms and conditions; or (ii) cease all use of Discovery. Termination will be effective without notice. In addition, xAd may in its sole discretion terminate this Agreement upon notice to you for any or no reason. Upon termination of this Agreement, any and all right(s) to use Discovery shall immediately cease and you must promptly delete or destroy all copies of Discovery in your possession or control. Sections 2, 3, 6, 9-16, 17, 18, and 20 will survive the termination of this Agreement.
18.WAIVER & SEVERABILITY. xAd’s failure to insist on upon strict performance of any of the terms and conditions of this Agreement by you will not operate as a waiver of any subsequent or other default or failure of performance. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable pursuant to applicable law or court order including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision(s) that most clearly matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
19.OTHER TERMS AND CONDITIONS. Additional notices, terms, and conditions may apply to access to or use of xAd’s products and services. If there is a conflict between this Agreement and any other notices, terms, or conditions, xAd shall resolve any conflict in good faith in its sole discretion but this Agreement shall generally control with respect to accessing and using Discovery.