USER LICENSE AGREEMENT
Last Modified on June 17, 2009
PLEASE READ THIS AGREEMENT
CAREFULLY; THIS IS A BINDING CONTRACT.
Welcome to Curse! The Curse Client is a persistent desktop software application which allows users to, among other things, download add-ons, update add-ons receive news (as it may be modified, updated and/or upgraded from time to time and together with any documentation, the “Software”). Curse also maintains a World Wide Web site which operates together with the Software, currently located at www.curse.com (the "Web Site"). The Software works in conjunction with the Web Site to provide you various services (the “Curse Client Service”).
IT IS IMPORTANT THAT YOU CAREFULLY READ AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE “I AGREE” BUTTON LOCATED AT THE END OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE CLICK THE “CANCEL” BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER.
Subject to the terms
of this Agreement and the Curse Online Agreements, Curse hereby grants
you a limited, non-exclusive, personal, non-sublicensable, non-assignable
license to download, install and use the Software onto a computer and
to use the Software in conjunction with the Curse Client Service solely
for the purpose of using the Curse Client Service. The Software may
only be used in connection with the Curse Client Service and in accordance
with this Agreement and the Curse Online Agreements and any rules, restrictions
or documentation set forth by Curse from time to time.
You may not, nor may
you authorize or encourage any third party to, (a) sublicense, rent,
lease, translate, reverse engineer, reverse compile, reduce to human
perceivable form, disassemble the Software or otherwise attempt to derive
the source code, underlying ideas, or algorithms of the Software, or
in any way ascertain, decipher, or obtain the communications protocols
for accessing a Curse service or network; (b) copy, modify or create
derivative works of the Software except as necessary to execute the
Software; (c) use the Software to develop software or services that
access the address space of the Software or that intercept the proxy;
(d) attempt to gain unauthorized access to any Curse service, account,
computer system or network associated with the Software; (e) incorporate,
integrate or otherwise include the Software or any portion thereof (including
the communications protocols) into any software, program or product
that communicates, accesses, or otherwise connects with a Curse service
or that interconnects any Curse service with any other instant messaging
or other online service; or (f) use any Curse services associated with
the Software in any manner that could damage, disable, overburden, or
impair such services or interfere with any other party's use and enjoyment
of them. The Software may be installed on a noncommercial basis from
the copy of the Software that you have been licensed, on additional
computers by and for the use of end users who have agreed to the terms
of this Agreement, but only if (i) the copy of the Software that you
have been licensed is not bundled with or included within separately
licensed products on a single medium, and (ii) such installation does
not violate the terms of other applicable end user agreements or the
intellectual property rights of third parties. You may not transmit
the Software over a network.
The Software and Curse
Client Service may be incorporated into, and may incorporate, technology,
software and services owned and controlled by third parties. Use of
such third party software or services is subject to the terms and conditions
of the applicable third party license agreements, and you agree to look
solely to the applicable third party and not to Curse to enforce any
of your rights in relation thereto. All modifications or enhancements
to the Software and Curse Client Service remain the sole property of
Curse. You understand that Curse, in its sole discretion, may modify
or discontinue or suspend your right to access the Service or use any
of the Software at any time, and may at any time suspend or terminate
any license hereunder and disable any Software you may already have
accessed or installed without prior notice. Curse reserves the right
to add or remove features or functions to the Software and/or Curse
Client Service at any time in its sole discretion. When installed on
your computer, the Software periodically communicates with Curse servers.
You acknowledge and agree that Curse has no obligation to make available
to you any subsequent versions of its software applications.
The Software and Curse
Client Service contain proprietary and confidential information of Curse,
including copyrights which are protected by international copyright
laws, trade secrets and trademarks contained in the Software and/or
Service. Title to and ownership of the Software, including without limitation
all intellectual property rights in and to the Software, are and shall
remain the exclusive property of Curse and its licensors, and except
for the limited license granted to you by Curse, Curse reserves all
right, title and interest in and to the Software. You shall not take
any action to jeopardize, limit or interfere with Curse' ownership of
and rights with respect to the Software and Curse Client Service. You
acknowledge that any unauthorized copying or unauthorized use of the
Software or Curse Client Service is a violation of this Agreement and
is strictly prohibited.
4. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant
that you: (i) possess the legal right and ability to enter into this
Agreement and to comply with its terms, (ii) will use the Software and
Curse Client Service for lawful purposes only and in accordance with
this Agreement and all applicable laws, regulations and policies, (iii)
will always provide and maintain true, accurate, current and complete
information as requested by Curse, (iv) are of a lawful age in your
applicable jurisdiction to enter into this Agreement and install and
use the Software and Curse Client Service, and (v) will only use the
Software and Curse Client Service on a computer on which such use is
authorized by the computer's owner or lessee, as applicable.
If Curse has reasonable
grounds to suspect that your representations, warranties or promises
are inaccurate or breached, Curse may terminate this license, your Account,
deny any or all use of the Software and/or Curse Client Service, and
pursue any appropriate legal remedies.
5. WARRANTY DISCLAIMER
To the maximum extent allowed by law, Curse, its licensors and subcontractors do not warrant any connection to, compatibility with, transmission over, nor results or use of, any network connection or facilities provided (or failed to be provided) through the Curse Client Service. You are responsible for assessing your own computer and transmission network needs, and the results to be obtained there from.
YOUR USE OF THE CURSE CLIENT SERVICE AND ALL SOFTWARE ACCESSIBLE THROUGH THE CURSE CLIENT SERVICE IS AT YOUR SOLE RISK. THE CURSE CLIENT SERVICE AND ALL SOFTWARE ACCESSIBLE THROUGH THE CURSE CLIENT SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
CURSE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY, THE "CURSE PARTIES") EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE CURSE CLIENT SERVICE AND ANY SOFTWARE ACCESSIBLE THROUGH THE CURSE CLIENT SERVICE, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, THE CURSE PARTIES DO NOT WARRANT THAT USE OF THE CURSE CLIENT SERVICE OR ANY SOFTWARE OR CONTENT ACCESSIBLE THROUGH THE CURSE CLIENT SERVICE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, SECURE OR ERROR-FREE. THE CURSE PARTIES MAKE NO WARRANTY THAT DEFECTS IN THE SOFTWARE OR CONTENT WILL BE CORRECTED OR THAT THE WEB SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE THAT
THE CURSE PARTIES DO NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS
OR SERVICES OFFERED BY THIRD PARTIES, INCLUDING ADD-ONS, THROUGH THE
CURSE CLIENT SERVICE. THE CURSE PARTIES ARE NOT RESPONSIBLE FOR CONTENT
PROVIDED BY THIRD PARTIES (INCLUDING USERS), AND ASSUME NO RESPONSIBILITY
FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY,
COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT MANAGED WITH THE
CURSE CLIENT SERVICE. THE CURSE PARTIES DO NOT ENDORSE, WARRANT OR GUARANTEE
ANY PRODUCT OR SERVICE OFFERED THROUGH OR IN CONNECTION WITH THE CURSE
CLIENT SERVICE BY ANY THIRD PARTY, WILL NOT BE A PARTY TO OR IN ANY
WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF
PRODUCTS OR SERVICES, AND WILL NOT BEAR ANY RESPONSIBILITY FOR THEIR
PRODUCTS, SERVICES, POLICIES OR ACTIONS. USERS USING ANY SUCH PRODUCTS
AND SERVICES MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS RELATING
TO THE USE OF SUCH THIRD PARTY CONTENT, SOFTWARE OR SERVICES AND FAILURE
TO ABIDE BY THOSE ADDITIONAL TERMS AND CONDITIONS MAY RESULT IN TERMINATION
NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ANY CURSE PARTY OR THROUGH
THE CURSE CLIENT SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED
SOME JURISDICTIONS DO
NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR LIABILITY,
AND IN SUCH JURISDICTIONS THE CURSE PARTY’S AGGREGATE LIABILITY WILL
BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6. LIABILITY LIMITATION
YOU AGREE THAT THE CURSE
PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS
OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF
THE CURSE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
RESULTING FROM: (I) THE USE OR INABILITY TO USE THE CURSE CLIENT SERVICE;
(II) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES RESULTING FROM
ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED THROUGH
OR FROM THE CURSE CLIENT SERVICE; (III) UNAUTHORIZED ACCESS TO, ALTERATION,
DELAY, NON-DELIVERY OR MIS-DELIVERY OF YOUR TRANSMISSIONS OR DATA; (IV)
STATEMENTS OR CONDUCT OF ANYONE ON THE CURSE CLIENT SERVICE; OR (V)
ANY OTHER MATTER RELATING TO THE CURSE CLIENT SERVICE, INCLUDING ANY
GOODS OR SERVICES OBTAINED THROUGH OR FROM THE CURSE CLIENT SERVICE.
IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, ANY CURSE
PARTY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES
OUT OF OR IS ANY WAY CONNECTED TO YOUR USE OF THE CURSE CLIENT SERVICE,
LIABILITY OF THE CURSE PARTIES SHALL IN NO EVENT EXCEED THE TOTAL OF
ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO THE CURSE CLIENT SERVICE
OR FEATURE OF THE CURSE CLIENT SERVICE PAID BY YOU TO CURSE IN THE SIX
MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST THE CURSE
PARTY. CURSE PARTY’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH
RESPECT TO USE OF THE SOFTWARE SHALL BE THE REPLACEMENT OF SUCH SOFTWARE
WHICH IS FOUND TO BE DEFECTIVE, USING MEDIA CHOSEN BY CURSE.
THE CURSE PARTIES ASSUME
NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY USER, LOSS OF DATA FROM
ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION,
OR SERVICE INTERRUPTIONS CAUSED BY THE NEGLIGENCE OF ANY CURSE PARTY,
OR USER'S OWN ERRORS AND/OR OMISSIONS.
SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES;
IN SUCH JURISDICTIONS THE CURSE PARTY’S LIABILITY IS LIMITED TO THE
MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend,
indemnify and hold harmless the Curse Parties from all losses, liabilities,
claims, demands, proceedings, suits, damages or expenses, including
reasonable attorney's fees, (i) arising from breach of this Agreement
by or through your Account, or (ii) asserted by any third party due
to or arising from or in connection with use of or conduct through your
Account on the Curse Client Service, including your use of the Software.
Curse reserves the right, at its own expense, to assume the exclusive
defense and control of any matter otherwise subject to indemnification
by you hereunder, which shall not excuse your indemnity obligations.
8. COLLECTION OF INFORMATION
Curse may collect, use, store and transmit technical and related information regarding your computer, including without limitation your Internet Protocol address, operating system, application software and peripheral hardware, that may be gathered periodically to facilitate the provision of software updates, dynamically served content, product support and other services to you. Curse may also use this information in the aggregate and, in a form which does not personally identify you, to improve our products and services
Curse may change this
Agreement at any time and the changes will become effective 15 days
after posting the revised Agreement (the "Effective Date").
You can review the most current version of this Agreement at any time
at http://www.curse.com/content/curseclienteula.aspx. You are responsible for checking periodically
for changes and your continued use of the Curse Client Service after
the Effective Date indicates your acceptance of such new version of
This Agreement is effective from the date you receive the Software and remains in force (subject to any modifications to this Agreement by Curse) until terminated. You may terminate the license under this Agreement at any time by destroying all tangible embodiments or copies of the Software in your possession, including all backup copies and all related materials. Your license rights hereunder will automatically terminate without notice if you fail to comply with any provision herein. Upon termination, you must destroy all tangible embodiments or copies of the Software in your possession, including, without limitation, delete all copies of the Software on your computer. Sections 2, 3, 4, 5, 6, 7, 10, 11 and 12 shall survive such termination.
11. EXPORT LAW
This Agreement is subject
to any laws, regulations, orders or other restrictions on the export
from the United States of the Software or of information about the Software
that may be imposed from time to time by the U.S. government. Notwithstanding
anything contained in this Agreement to the contrary, you may not export
or reexport, directly or indirectly, any Software or information pertaining
thereto to any country for which an export license or other governmental
approval is required at the time of export or reexport without first
obtaining such license or approval.
12. U.S. GOVERNMENT RESTRICTED RIGHTS
To the extent applicable,
the U.S. Government shall only have those rights to use the Software
as expressly stated and expressly limited and restricted in this Agreement,
as provided in 48. C.F.R. §§ 227.7202-1 through 227.7204. The
Software and all accompanying written materials are provided with RESTRICTED
RIGHTS. Use, duplication, or disclosure by the Government is subject
to restrictions as set forth in Restricted Rights in Technical Data
and Computer Clause at FAR 52.227-7013(c)(1)(ii) or FAR 52.227-19. Contractor/manufacturer
is Curse Inc., 351 California Street, Suite 1450, San Francisco, CA
Curse's rights under
this Agreement may not be waived unless Curse agrees to such change
in writing. This Agreement and your Account are personal to you and
may not be transferred or assigned. This Agreement is governed by U.S.
Federal law and the laws of the State of California, U.S.A., without
regard to its conflicts of law provisions; and you hereby consent to
the exclusive jurisdiction of and venue in the federal and state courts
located in San Francisco County, California, U.S.A. in all disputes
arising out of or relating to the Curse Client Service or this Agreement.
You further agree not to bring claims on a representative, class member
basis, or as a private attorney general. Use of the Curse Client Service
is unauthorized in any jurisdiction that does not give effect to all
provisions of these terms and conditions, including without limitation
this Section. Curse's performance of this Agreement is subject to existing
laws and legal process, and nothing contained in this Agreement is in
derogation of our right to comply with governmental, court and law enforcement
requests or requirements relating to your use of the Curse Client Service
or information provided to or gathered by Curse with respect to such
use. If any part of this Agreement is determined to be invalid or unenforceable
pursuant to applicable law including, but not limited to, the warranty
disclaimers and liability limitations set forth above, then the invalid
or unenforceable provision will be deemed superseded by a valid, enforceable
provision that most closely matches the intent of the original provision
and the remainder of this Agreement shall continue in effect. This Agreement,
together with the Curse Online Agreements, constitutes the entire understanding
between you and Curse regarding the Software and the Curse Client Service.
The application to this Agreement of the United Nations Convention on
Contracts for the International Sale of Goods is hereby expressly excluded.
No delay or failure to perform by Curse shall be considered a breach
of this Agreement if such default, delay or failure to perform is shown
to be due to causes beyond Curse’s reasonable control. Without limiting
any other remedy of Curse, Curse shall be entitled to seek specific
performance, injunctive relief or other equitable remedies in the event
of any failure to perform your obligations hereunder or for your breach
of the terms of this Agreement.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO CURSE THE RIGHTS SET FORTH HEREIN.