Linspire, Inc. provides its service to you subject to the following Terms and Conditions of Use Agreement. Please read this agreement carefully!
Linspire, Inc. (“Linspire,” “we,” “us”) provides this web site and all site-related services (collectively, the “Site”) subject to your compliance with the terms and conditions set forth in this agreement (the “Agreement”). This Agreement governs the relationship between Linspire and you, the Site visitor (including your employer and any affiliates and its or their employees, contractors and agents, “you”) with respect to your use of the Site. It is important that you read carefully and understand the terms and conditions of this Agreement. By using the Site, you agree to be bound by this Agreement. If you do not agree to these terms and conditions, please do not use the Site.
We reserve the right at any time to:
- Change the terms and conditions of this Agreement; or
- Change the Site, including eliminating or discontinuing any content on or feature of the Site.
Any changes we make will be effective immediately upon posting a revised version of this Agreement on the Site. Your continued use of the Site following such changes will be deemed acceptance of such changes. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement. Upon our request, you agree to sign a non-electronic version of this Agreement.
The information and materials provided through the Site, including, without limitation, any data, text, graphics, images, audio and video clips, logos, icons, software (“Software”) and links (collectively, the “Materials”), are intended to educate and inform you about the Freespire project. Use or downloading of the Software and other Materials is conditioned on acceptance of the terms and conditions of this Agreemeant and any license agreements relating to such Software or other Materials, including, without limitation, agreements of third parties. By acquiring or using the Software or other Materials, you agree to such terms and conditions. You must retain all copyright and other proprietary notices on downloaded and copied Materials, and any such downloads or copies are subject to the terms and conditions of this Agreement.
2. Your Account.
Some areas of the Site may require you to sign up for an account. When and if you sign up for an account, you agree to: (a) provide accurate, current and complete information about yourself as prompted by our sign up process (including your email address); and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to terminate this Agreement and your use of the Site.
As part of the account sign up process, you will be asked to enter your email address and password. Your email address acts as a username. We may refuse to grant you a username that is already taken, or that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Site to any third party. If you have reason to believe that your account with us is no longer secure, you must promptly change your password by visiting the “My.Freespire” area of the Site. You are entirely responsible for maintaining the confidentiality of your USERNAME and password and for any and all activities (INCLUDING PURCHASES, AS APPLICABLE) that ARE CONDUCTED through your account.
3. Code of Conduct.
While using the Site, Materials and/or Software, you agree not to:
- Restrict or inhibit any other visitor or member from using the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site;
- Express or imply that any statements you make are endorsed by us, without our prior written consent;
- (a) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights;
- (b) any material, non-public information about companies without the authorization to do so;
- (c) any trade secret of any third party; or
- (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
- Engage in spamming or flooding;
- Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature;
- Remove any copyright, trademark or other proprietary rights notices contained in the Site, Materials or Software;
- “Frame” or “mirror” any part of the Site without our prior written authorization;
- Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents; or
- Harvest or collect information about Site visitors or members without their express consent.
While using the Site, Materials and/or Software, you agree to comply with all applicable laws, rules and regulations.
4. Information Provided by Linspire.
Although Linspire strives to provide Materials that are both useful and accurate, laws, regulations, data and other information change frequently and are subject to varying interpretations. In addition, the facts and circumstances of every situation differ. Accordingly, although Linspire endeavors to use reasonable care in assembling the Materials, the Materials may not be up-to-date, accurate or complete.
In addition, portions of the Materials have been contributed to the Site by various industry specialists and service providers. The inclusion of such information does not indicate any approval or endorsement of such providers, and Linspire expressly disclaims any liability with respect to the foregoing.
5. Submissions and Postings.
Please note that, because we and our designees host message boards and other forums found on the Site (collectively, the “Forums”) and, therefore, redistribute materials you give to us, we require certain rights in those materials. Accordingly, by sending or transmitting to us creative suggestions, ideas, notes, concepts, information or other materials (collectively, “Submissions”), or by posting such Submissions to any area of the Site, you grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Submissions.
Information on our Forums is provided by our staff and other contributors, some of whom use anonymous screen names and are people not otherwise connected with Linspire. You acknowledge that a large volume of information is available in our Forums and that people participating in such Forums occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading or deceptive. We neither endorse nor are responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed on the Site or Forums by third parties, whether such third parties are visitors to the Site, members of the Linspire community or others. The opinions expressed in the Forums reflect solely the opinion(s) of the participants and may not reflect the opinion(s) of Linspire. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information. Under no circumstances will we or our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on such information obtained through the Site.
We have no obligation to monitor the Site or the Forums, or any Submissions or other materials that you or other third parties transmit or post on the Site or the Forums. You acknowledge and agree that we have the right (but not the obligation) to monitor the Site and the Forums and the materials you transmit or post; to alter or remove any such materials (including, without limitation, any posting to a Forum); to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Site properly; to protect ourselves, our sponsors and our members and visitors; and to comply with legal obligations or governmental requests.
8. Claims of Copyright Infringement.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Linspire infringe your copyright (for example, materials posted by Linspire on one of our Forums), you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Linspire to locate the material on the Site; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed by Linspire against you, the DMCA permits you to send Linspire a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see www.loc.gov/copyright for details. Notices and counter-notices with respect to the Site should be sent to Attention: General Counsel, 9333 Genesee Ave., Suite 300, San Diego, CA 92121, Tel. (858) 587-6700, Fax. (858) 587-8095, email@example.com. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
9. Ownership and Restrictions on Use.
The Site is owned and operated by Linspire and the Materials (and any intellectual property and other rights relating thereto) are and will remain the property of Linspire, its licensors and suppliers, and others. If you download Software from the Site, such Software is licensed to you by us or the owner of such Software and is subject to the terms and conditions of the license agreement that accompanies such Software.
The trademarks, logos, and service marks displayed on the Site, including without limitation the Freespire trademark (collectively the “Trademarks”), are the registered and unregistered trademarks of Linspire, Linspire’s licensors and suppliers, and others. The Trademarks owned by Linspire, whether registered or unregistered, may not be used in connection with any product or service that is not Linspire’s, in any manner that is likely to cause confusion with customers, or in any manner that disparages Linspire. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Linspire, Linspire’s licensors or suppliers, or the third party owner of any such Trademark.
10. Access By Minors.
Pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the web sites of the Electronic Frontier Foundation and of America Links Up. Also, please click here for information on SurfSafe, Linspire’s web filtering software.
11. Jurisdictional Issues.
We make no representation that Materials available on or through the Site are appropriate or available for use in other locations other than the United States. Those who choose to access the Site from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable. The Software is further subject to United States export controls. No Software may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using any Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
We reserve the right to limit the availability of the Site and/or the provision of any service, program, film or other product described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such service, program, film or other product that we provide.
12. Rules for Sweepstakes, Contests and Games.
This Agreement shall remain effective until terminated in accordance with its terms. Either party may terminate this Agreement immediately upon notice to the other party. In addition, we reserve the right to immediately terminate this Agreement, and/or your access to and use of the Site or any portion thereof, at any time and for any reason, with or without cause. Upon termination of this Agreement by either party, your right to use the Site shall immediately cease, and you shall destroy all Materials obtained from the Site and all copies thereof, whether made under the terms of this Agreement or otherwise.
THE SITE, THE MATERIALS ON THE SITE, ANY PRODUCT OR SERVICE OBTAINED THROUGH THE SITE AND THE SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT FOR ANY WARRANTIES, IF ANY, IN THE TERMS AND CONDITIONS OF THE APPLICABLE LICENSE AGREEMENT RELATING TO THE SOFTWARE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. COMPANY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SITE OR THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, THE SERVER(S) ON WHICH THE SITE IS HOSTED OR SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE SOFTWARE AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF COMPANY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE ON THE SITE, IN THE SOFTWARE OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SITE AND ANY MATERIALS PROVIDED THROUGH THE SITE ARE ENTIRELY AT YOUR OWN RISK.
You acknowledge that Linspire does not give any warranties (and expressly disclaims any and all warranties), express or implied, grant any license or right or give a covenant not to sue, or grant any other rights, including intellectual property rights with respect to any Third Party Software included within the Software. Notwithstanding anything to the contrary in this Agreement, this Agreement does not and shall not be interpreted or construed to include any representation or warranty that the Third Party Software, or the use thereof, whether alone or in combination with other hardware, software, apparatuses, or methods, is or will be free from infringement of any intellectual property rights or other rights of third parties. Linspire disclaims any and all liability arising from the use of such Third Party Software, including claims of infringement of third party intellectual property rights or other rights arising out of or relating to such Third Party Software. You assume all risk and liability arising from the use, copying and distribution of such Third Party Software.
15. Limitation of Liability.
NEITHER COMPANY NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE AND/OR MATERIALS CONTAINED ON THE SITE, THE SOFTWARE, ANY LINKED SITE OR ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SITE. EXCEPT AS EXPRESSLY PROVIDED ACCORDING TO THE TERMS OF THE APPLICABLE LICENSE AGREEMENT: (A) YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, MATERIALS, SOFTWARE OR ANY LINKED SITE IS TO STOP USING THE SITE, MATERIALS, SOFTWARE OR LINKED SITE, AS APPLICABLE; AND (B) THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE.
You agree to indemnify, defend and hold Linspire, our affiliates, licensors, suppliers, advertisers and sponsors, and our and their directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement; (b) any allegation that any Submissions or other materials you submit to us or transmit to the Site infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (c) your activities in connection with the Site.
The Site is provided by Linspire, Inc. If you have any questions, comments or complaints regarding this Agreement or the Site, feel free to contact us at 9333 Genesee Ave., Suite 300, San Diego, CA 92121, Tel. (858) 587-6700, Fax. (858) 587-8095.
18. Notice for California Users.
Under California Civil Code Section 1789.3, California Site users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Any dispute relating in any way to this Agreement or to your visit to the Site shall be submitted to confidential arbitration in San Diego County, California, U.S.A., except that, to the extent you have in any manner violated or threatened to violate Linspire’s intellectual property rights or other proprietary rights or the licenses granted pursuant to this Agreement, Linspire may seek injunctive or other appropriate relief in any state or federal court, and you irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator shall not have the power to alter, modify, amend, add to or subtract from any term or provision of this Agreement, to rule upon or grant any extension, renewal or continuance of this Agreement, or to award damages or other remedies expressly prohibited by this Agreement, including, without limitation, punitive or exemplary damages. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. If, as a matter of law, the foregoing arbitration provision is not enforceable as to a particular claim brought by one party against the other, then that claim shall be instituted solely in a court situated in San Diego County, California, U.S.A.; for this purpose, both you and Linspire irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts.
This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between Linspire and you relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between Linspire and you with respect to such subject matter. This Agreement is not assignable, transferable or sublicenseable by you except with Linspire’s prior written consent. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.