Thank you for your interest in testing the experimental Netscape Prototype Browser. The following terms govern your testing of the Netscape Prototype Browser, Versions 0.5.1 and above (the "Browser"). YOU MAY TEST THE BROWSER ONLY IF YOU AGREE TO THESE TERMS (THE "AGREEMENT"). BY CLICKING "I AGREE," OR BY DOWNLOADING, INSTALLING OR USING THE BROWSER, YOU AGREE TO THE TERMS OF THIS AGREEMENT, YOU AGREE TO RECEIVE NOTICES FROM NETSCAPE ELECTRONICALLY, AND YOU AGREE TO THE PRIVACY PRACTICES DISCLOSED IN PARAGRAPH 6 BELOW. BY AGREEING TO THE TERMS OF THIS AGREEMENT YOU ALSO REPRESENT AND WARRANT THAT YOU WERE INVITED BY NETSCAPE TO PARTICIPATE IN THIS TESTING PROGRAM. If you do not agree to these terms, or you were not invited to participate in the testing of this product by Netscape, do not click "I Agree" and do not install or use the Browser.
1. LICENSE GRANT. Netscape Communications Corporation ("Netscape") grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable license to use the Browser solely for testing and evaluation purposes, for a limited time. You may not use the Browser for any purpose other than trial and evaluation. Without limiting the foregoing, you may not use the Browser for operation of your or your employer's business, development of other applications for ongoing use, or providing services to others. This license does not entitle you to receive from Netscape hard-copy documentation, support, telephone assistance, or enhancements or updates to the Browser. Although Netscape is considering a commercial release of the browser, it is under no obligation to do so. Netscape reserves the right to alter features, licensing terms, or other characteristics of any version of the Browser that it releases.
2. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, you may not: (i) modify or create any derivative works of the Browser or documentation, including customization, translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Browser (except to the extent applicable laws specifically prohibit such restriction), or the underlying ideas or algorithms of the Browser; (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Browser; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Browser; (v) block, disable or otherwise affect any advertising, advertisement banner window, tabs, links to other sites and services, or other features that constitute an integral part of the Browser; (vi) share the password for accessing the Browser download area with anyone else; (vii) use the Browser in any way that violates this Agreement or any law; or (viii) authorize or assist any third party to do any of the things described in this paragraph.
3. AUTOMATED UPDATES. Netscape may deliver to your computer or other device upon which the Browser is installed automated updates, modifications, patches to address issues such as security, interoperability, and performance, and/or reinstallations of the Browser software (collectively "Updates") at any time without providing you with notice. Certain Updates may be subject to additional terms and conditions. By using the Browser you consent to such automated updating. Your use of the Updates shall be governed by this Agreement (as modified from time to time) unless you are asked to agree to a new agreement at the time of download or installation.
4. MODIFICATION OF THIS AGREEMENT. Netscape may amend or modify this Agreement at any time in its sole discretion, subject to notice to you. The modified Agreement will be effective immediately upon any notice to you and you agree to the new posted Agreement by continuing your use of the Browser. If you do not agree with the modified Agreement, your only remedy is to discontinue using the Browser.
5. EXPERIMENTAL SOFTWARE. You acknowledge that the Browser is experimental and may have defects or deficiencies that cannot or will not be corrected by Netscape and/or its licensors or other suppliers. Netscape is under no obligation to provide you with any error corrections, updates, upgrades, bug fixes and/or enhancements. You shall have sole responsibility for the adequate protection and backup of your data and/or equipment used with the Browser.
6. TEST INFORMATION AND TESTER FEEDBACK. You acknowledge that feedback concerning users' experiences with the Browser is essential to the improvement of the Browser. You agree that Netscape may query your computer system for information relating to your use of the Browser, including, for example, information relating to the frequency of your use of the Browser and information on computer errors, malfunctions or other abnormalities occurring during your use of the Browser. You agree to participate in the forums set up by Netscape specifically for feedback regarding the Browser, and you understand and acknowledge that your participation in such forums will be governed by the Netscape Network Terms of Service, which can be reviewed at: http://channels.netscape.com/ns/info/tos.jsp
. You also agree that Netscape may contact you by telephone, electronic mail, or other means, to solicit your feedback concerning your experiences with the Browser.
7. TERMINATION. Your right to use the Browser shall terminate on the earlier of (i) the expiration date for that version of the Browser, if any, or (ii) 30 days following Netscape's release of a commercial version of the Browser. Additionally, this Agreement and your right to use the Browser shall terminate immediately and without notice should you breach this Agreement. In the event of any termination of this Agreement or your rights hereunder, the provisions in Paragraphs 2, 5, 8, 14 to 22 and 24 shall survive such termination and you agree to continue to be bound by those terms. Upon termination, you must destroy all copies of the Browser.
8. YOUR RESPONSIBILITY. You may not use the Browser while driving, operating hazardous equipment, or engaging in other forms of hazardous activities. You may use the Browser for lawful purposes only. You agree to indemnify and hold harmless Netscape for losses incurred by Netscape or another party due to someone else using your copy of the Browser or if you fail to use reasonable care while using the Browser.
9. COMMUNICATIONS. You are responsible for obtaining your own Internet access at your own expense. Any telephone or other communications charges that you incur to access the Internet, or any other Netscape product or service are your responsibility. If you access such services through a telephone line, please call your local phone company to determine if the access numbers that you selected are subject to long distance or other toll charges. Also, your carrier, such as a wireless carrier, may charge service fees for web browsing and other services that require the use of airtime and wireless data services. Please check with your carrier to verify any such fees.
10. CHANGES TO THE BROWSER. Netscape may, at any time, change, modify, add to or discontinue or retire any aspect or feature of the Browser. Netscape has no obligation to provide you with notice of any such changes.
12. REPRESENTATIONS. You represent and warrant that you have adequate legal capacity to enter into this Agreement, that you will use the Browser only for lawful purposes and in accordance with this Agreement, and that you will not use the Browser in violation of any law, regulation or ordinance or any right of Netscape or its licensors or any third party, including, without limitation, any right of privacy, publicity, copyright or trademark. You agree to indemnify Netscape, its parent, licensors, officers, agents, employees and directors for any damages incurred as a result of a violation of this paragraph.
13. FEES. There is no license fee for the Browser. If the Browser is made available on media, and if you wish to receive the Browser on media, there may be a small charge for the media and for shipping and handling. You are responsible for any and all taxes.
14. PROPRIETARY RIGHTS. Netscape and/or its licensors and other suppliers retain all title, ownership and intellectual property rights in the Browser. The Browser is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Browser are the property of the applicable content owner and are protected by applicable law. The license granted under this Agreement gives you no rights in or to such content. Netscape, or its licensors and other suppliers own all trademarks used in connection with the Browser, and no license to use any such trademarks is provided hereunder. You grant Netscape the right to use in any manner and without limitation all comments, suggestions, complaints and other feedback you provide relating to the Browser.
15. USE AND AVAILABILITY OF OPEN SOURCE CODE. Portions of the Browser were created using source code available through various open source projects. The licenses and availability of source code for such components are specified in the copyright notice file (copyrightnotice.txt) delivered with the Browser.
16. CONFIDENTIALITY. "Confidential Information" shall mean the existence of the Browser, information about the features and functionality of the Browser, the Browser object code and source code, any and all feedback you provide regarding the Browser, and information concerning Netscape's business, products, services, content, finances, subscribers, tools, source code, product designs and plans, customer lists, product development plans, release dates, forecasts, strategies, pricing, and other marketing and technical information and other unpublished information provided to you by Netscape; and all other information that Netscape characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall at all times, both during the term hereof and for a period of at least 3 years after termination of your right to use the Browsers that you test, keep in confidence all such Confidential Information, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Netscape. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. If you are testing the Browser on behalf of your company, you shall only disclose Confidential Information to another employee or contractor under binding obligations of confidentiality substantially similar to those set forth herein on a "need to know" basis. You shall notify Netscape in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with Netscape in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Netscape prior to such disclosure to allow Netscape an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (ii) cooperate fully with Netscape in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. You shall promptly furnish to Netscape all testing results including, but not limited to, any errors or bugs found in the Browser, which errors or bugs shall be deemed Confidential Information hereunder.
17. INJUNCTIVE RELIEF. You acknowledge and agree that, notwithstanding any other provisions of this Agreement, your breach or threatened breach of this Agreement shall cause Netscape irreparable damage for which recovery of money damages would be inadequate and that Netscape, therefore, may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
18. DISCLAIMER OF WARRANTY. THE BROWSER IS PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. NETSCAPE AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES THAT THE BROWSER IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE BROWSER WILL MEET YOUR REQUIREMENTS, OR THAT ERRORS IN THE BROWSER WILL BE CORRECTED, AND THE IMPLIED WARRANTIES THAT THE BROWSER IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, NETSCAPE AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE BROWSER IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE BROWSER HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE BROWSER SUFFICIENTLY MEETS YOUR REQUIREMENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NETSCAPE OR A NETSCAPE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. NETSCAPE AND ITS LICENSORS AND OTHER SUPPLIERS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE BROWSER. YOU BEAR THE ENTIRE RISK AS TO ITS QUALITY AND PERFORMANCE AND ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE BROWSER IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
19. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NETSCAPE OR ITS PARENT, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "NETSCAPE GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE BROWSER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE NETSCAPE GROUP'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE BROWSER RECEIVED BY NETSCAPE UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR BROWSER, AS DETERMINED AT NETSCAPE'S SOLE DISCRETION, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF NETSCAPE TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. THE NETSCAPE GROUP IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE BROWSER AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
20. EXPORT CONTROLS. You agree to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export, re-export or import the Browser in violation of any such restrictions, laws or regulations, or without all necessary approvals. For example, you may not export or re-export any data or software you receive from Netscape or any direct product of such data or software to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. Government unless properly authorized.
21. HIGH RISK ACTIVITIES. The Browser is not fault-tolerant and is not designed, manufactured or intended for use in environments in which its failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, NETSCAPE AND ITS LICENSORS AND OTHER SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE NETSCAPE GROUP WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE BROWSER IN SUCH APPLICATIONS.
22. U.S. GOVERNMENT END-USERS. The Browser is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b) (2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Browser with only those rights as set forth herein.
23. ELECTRONIC NOTICES. YOU CONSENT TO NETSCAPE PROVIDING YOU ANY INFORMATION AND NOTICES REGARDING THE BROWSER OR YOUR TESTING ("NOTICES") IN ELECTRONIC FORM. NETSCAPE MAY PROVIDE NOTICES TO YOU (1) VIA E-MAIL AT THE E-MAIL ADDRESS YOU DISCLOSED WHEN YOU SIGNED UP TO TEST THE BROWSER OR (2) BY POSTING THE NOTICE ON A NETSCAPE WEB SITE THAT SERVES AS THE DEFAULT HOME PAGE FOR YOUR BROWSER. You may withdraw your consent for electronic notices; however, Netscape may then terminate your license.
24. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between you and Netscape concerning the subject matter of this Agreement, which may only be modified by Netscape. (b) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the Commonwealth of Virginia, U.S.A., excluding its conflict of law provisions. (c) You agree that jurisdiction for any claim or dispute arising from the use of the Browser resides exclusively in the federal and state courts of the Commonwealth of Virginia and you consent to the personal jurisdiction thereof. The foregoing provision may not apply to you depending on the laws in your jurisdiction. (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (e) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or Netscape may at its option instead terminate this Agreement. (f) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (g) 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. (h) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Netscape may assign this Agreement to any entity at its sole discretion. (i) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (j) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
25. USER OUTSIDE THE U.S. If you are using the Browser outside the U.S., then the provisions of this Section shall apply: (i) Les parties aux prÃ©sentÃ©s confirment leur volontÃ© que cette convention de mÃªme que tous les documents y compris tout avis qui s'y rattachÃ©, soient redigÃ©s en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Browser, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
Netscape Prototype Browser EULA Rev. 11/12/04
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