Source Code License
IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE
This End User License Agreement ("License Agreement") is a legal agreement between you (either an individual or an entity) and Esaya, Inc. and its suppliers and licensors (collectively "Esaya") for your use of the Gathera internet account aggregation program (the “Software”), the associated use of the World Wide Web site located at www.gathera.com and other computer systems operated by Esaya (collectively, the “Website”).
By clicking on the "Accept" button or otherwise using or accepting the Software and Website (collectively, “Services”) you acknowledge that you have read and agree to be bound by the terms of this License Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, CLICK ON THE “CANCEL” BUTTON AND / OR DO NOT USE THE SOFTWARE.
YOU AGREE TO BE BOUND BY THE "TERMS OF SERVICE” FOR THE WEBSITE AND SERVICES AT www.gathera.com/terms.
1. DESCRIPTION OF GATHERA
Gathera provides you with the ability to aggregate all the common tasks and messages from all your internet accounts via a plug in to your internet browser. To use Gathera, you need to click on the “Download” link on the World Wide Web site located at http://www.gathera.com. The Software User Interface will appear as a side bar in your internet browser. The major functional components of Gathera include:
- Aggregate all your accounts. You have the option to aggregate all your email (e.g. Yahoo!, AOL, Gmail and hotmail), social networking (e.g. myspace, facebook, etc), Instant Messaging (AOL, MSN, Yahoo! & Gmail), photo and other internet accounts (“Linked Accounts”) into Gathera. To add an account, you will need to select it and provide your username and password for that account. Your username and password for each Linked Account will be stored on our secure servers. For more information on how we safeguard and protect your information and privacy, please refer to http://www.gathera.com/privacy. Once added, the Linked Accounts will appear in your browser side bar for easy access to the messages and functions within. When the Software starts up, it will auto log you into all your Linked Accounts.
- Aggregated Message Preview. The software will periodically check each of your Linked Accounts for any new messages (e.g. emails, social network status updates, friend requests) and displace them within the Software. You will be able to preview, open or detele these message and even respond or comment on them in some cases.
- Macros. Once launched, the Software will provide streamlined access to most common functions in each Linked account. For example, in email Linked Accounts, if you click on the reply link within the Software, it will auto log you into the email account and navigate to the reply page. If you wish to compose a new message, the Software will auto log you into the account and navigate to the compose message page.
- Aggregate all your contacts. Once your accounts are aggregated, the Software will also display a compiled view of all your contacts across all your accounts. You will be able to add, edit or delete contacts from any of your accounts.
- Invite your Friends. Every time you add a Linked Account, you may be provided the option to invite your contacts in that account to join you on the Gathera network. This will be sent via an email, IM or a private message (“Invite Message”) in the social network depending on the account that is being added.
Additional information on the functional components within Gathera is available at http://www.gathera.com/.
Technical support for Gathera, as made available by Esaya, is described at: http://www.gathera.com/help.htm.
2. GRANT OF LICENSE
Esaya hereby grants to you a non-exclusive license to use the Software and any related documentation ("Documentation") subject to the following terms:
a) You must be a resident of the United States, its territories, commonwealths or possessions.
b) You are responsible for any telecommunications or other connectivity charges incurred through use of the Software and for paying all applicable fees, taxes and costs of the Linked Accounts.
d) Esaya may modify this License Agreement, the Terms of Service or any component of Gathera (including without limitation, charging for the Software, and / or Website). Esaya may also terminate this License Agreement, the Terms of Service or any component of Gathera at any time. No notice shall be required from Esaya to effect such termination. This License Agreement and your right to use Gathera will automatically terminate if you fail to comply with any term. Upon any termination of this License Agreement (whether by you or Esaya), you shall immediately discontinue use of Gathera.
3. LICENSE RESTRICTIONS
a) You may not: (i) permit other individuals to use the Software (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; or (v) remove any proprietary notices or labels on the Software or Documentation.
b) You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
c) You may only use the Software for your private, non-commercial use. You may not use the Software in any way to provide, or as part of, any commercial service or application. This Agreement and the Software and associated Services are personal to you, and may not be assigned without Esaya's express written consent.
d) You may not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
e) You may not use the Software to send unsolicited, promotional mass electronic email messages or notifications to one or more recipients or systems (known as "spamming"). Any promotional electronic messages, which are sent in an unsolicited manner to ten (10) or more recipients, or any series of unsolicited promotional electronic messages to single user, will be considered as spamming.
f) You may not use the Software, Website or Services to upload, post, email, otherwise transmit, or post links to: (i) any unsolicited or unauthorized advertising or promotional materials; or (ii) content which is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful, or racially, sexually, ethnically or otherwise objectionable.
g) You cannot export or re-export the Software in any form without the appropriate United States and foreign government licenses. You will not, directly or indirectly, export or transfer the Software to any country to which transmission is prohibited by applicable statute. Your failure to comply with this provision is a material breach of this License Agreement.
h) This license does not grant you any right to any enhancement or update.
4. TRIAL VERSIONS
In the event that the Software is an alpha release, beta release or trial version (each such a “Trial Version”), the terms of this Section shall apply. Your license to use the Software expires 30 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the Software that Esaya intends to distribute. While Esaya intends to distribute a commercial release of the Software, Esaya reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the Trial Versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
5. AUTOMATIC COMMUNICATIONS FEATURES
a) Automatic generation and communication of installation ID. An Installation ID is automatically generated by the Software upon installation and sent to Esaya’s computer systems on the Internet. Such identifier is a hardware hash, or checksum and no personally identifying data is included or required.
b) Personally Identifiable Information. The Software performs a variety of automatic communications to Esaya’s computer systems on the Internet as part of its normal operation. By installing and/or using the Software, you consent to the Software's communications features. Once you enter your user information into the Software, user information including your user id and password for each Linked Account as well as the userid and password you choose for Gathera will be sent to Esaya's computer systems. This information is used by Esaya’s computer systems to validate you as well as your access to your Linked Accounts. Esaya may match the user id to personally identifiable information in order to provide you with relevant information and customer and technical support.
d) Status Updates and User Messaging. The Software, in conjunction with Esaya’s computer systems on the Internet, performs a variety of communications over the Internet to obtain status on your Linked Accounts and to validate your user id and passwords.
e) Auto-Update. The Software automatically communicates with Esaya's computer systems on the Internet to check for, download and install updates to Esaya's and Esaya partner's software, such as bug fixes, patches, enhanced functions and new versions.
Title, ownership, rights, and intellectual property rights in and to the Software and Documentation shall remain in Esaya and/or its suppliers. Gathera is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights and intellectual property rights in and to the content accessed through the Software, Website and Services ("Content") shall be retained by the applicable Content owner and may be protected by applicable copyright or other law. This license gives you no rights to such Content.
7. WARRANTIES AND LIABILITIES
(a) For the Pay and Full versions of the Software, the following terms apply:
LIMITED WARRANTY. Esaya warrants that for a period of thirty (30) days from the date of acquisition the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. Esaya does not warrant however that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. Esaya also warrants that the media containing the Software, if provided by Esaya, is free from defects in material and workmanship and will so remain for thirty (30) days from the date you acquire the Software.
(i) No Other Warranties. NO OTHER WARRANTIES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW COMPANY, ESAYA AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE, THE ACCOMPANYING WRITTEN MATERIALS AND ANY ACCOMPANYING HARDWARE. If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident abuse or improper use; or if you violate the terms of this License Agreement, this warranty shall immediately terminate. This warranty shall not apply if the Software is used on or in conjunction with hardware or Software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(ii) Customer Remedies. Esaya's sole liability for a breach of this warranty shall be in Esaya's sole discretion: (i) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the license fee, if any, you paid for the Software. Repaired, corrected or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software or if longer for thirty (30) days after the date Esaya either shipped to you the repaired or replaced Software or advised you as to how to operate the Software so as to achieve the functionality described in the Documentation, whichever is applicable. Only if you inform Esaya of the problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will Esaya be obligated to honor this warranty.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WHETHER IN TORT CONTRACT OR OTHERWISE SHALL COMPANY, ESAYA OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ESAYA SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY OTHER PARTY. FURTHER, IN NO EVENT SHALL ESAYA'S LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE LICENSE FEE PAID TO ESAYA FOR THE SOFTWARE AND DOCUMENTATION. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) For Trial Versions of the Software and for the Website, Services and Content, the following terms apply:
DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY. THE SOFTWARE, DOCUMENTATION, SERVICES AND CONTENT ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ESAYA FURTHER DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION, SERVICES AND CONTENT REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ESAYA BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, THE SERVICES OR THE CONTENT, EVEN IF ESAYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ESAYA'S TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED TWENTY-FIVE DOLLARS ($25.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. ESAYA DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH ESAYA.
You agree to hold harmless, indemnify and defend Esaya, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to any claims that you have (i) used the Software, Website or Services in violation of another party's rights or in violation of any law, or (ii) violated any terms of this License Agreement. If you are importing the Software from the United States, you shall indemnify and hold Esaya harmless from and against any import and export duties or other claims arising from such importation.
9. U.S. GOVERNMENT RESTRICTED RIGHTS
This Software and Documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software--Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. Manufacturer is Esaya, Inc., 900 Broadway Suite 700, New York, NY 10003.
a) Injunctive Relief. To the extent that you have breached or have indicated your intention to breach these Terms of Service in any manner which violates or may violate Esaya's intellectual property rights, or may cause continuing or irreparable harm to Esaya (including, but not limited to, any breach that may impact Esaya's intellectual property rights, or a breach by reverse engineering), Esaya may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction.
b) Complete Agreement. This License Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by Esaya or not. The acceptance of any purchase order you place is expressly made conditional on your consent to the terms set forth herein. The terms and conditions contained in this License Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of Esaya. If any provision of this License Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This License Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
c) Governing Law; Jurisdiction. These Terms of Service are governed by the laws of New York, without regard to its conflicts of law provisions. You agree to bring and defend any actions related to these Terms of Service exclusively in the state of federal courts located in New York City, New York. These Terms of Service will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
d) Links. The Website, Software, Gathera status messages and Address Book Messaging messages may contain links to other websites or resources. You acknowledge and agree that Esaya is not responsible or liable for (i) the availability or accuracy of such websites or resources; or (ii) the content, advertising, or products on or available from such websites or resources. The inclusion of any such link does not imply that Esaya endorses the linked site.