These Terms and Conditions for the Pando Toolbar constitute a binding, contractual agreement ("Agreement") between you and Pando Networks Inc. ("Pando"). This Agreement applies solely to your use of the software, updates, plug-ins and services associated with the toolbar application with which this Agreement is provided (the "Toolbar"). By accepting this Agreement or by installing or using the Toolbar, you are indicating your acceptance and agreeing to all the terms and conditions of this Agreement. If you do not accept and agree to the following terms and conditions, you must not use or install the Toolbar.
1. LICENSE. Provided that you comply with the terms of this Agreement, Pando grants you a personal, limited, non-exclusive and non-transferable license to install and use the Toolbar on a single computer, solely in object code format and solely for personal and non-commercial purposes. This license does not entitle you to receive from Pando hard-copy documentation, support, telephone assistance, or enhancements or updates to the Toolbar, though we may provide any of the foregoing in our sole discretion.
3. RESTRICTIONS. You may not: (a) use, copy, modify, download or transfer the Toolbar or any component of the Toolbar, in whole or in part, except as expressly provided in this Agreement or with Pando's written consent; (b) reverse engineer, disassemble, decompile, or translate the Toolbar, attempt to derive the source code of the Toolbar, create any derivative work from the Toolbar, or authorize or assist any third party to do any of the foregoing; (c) rent, lease, loan, resell for profit, or distribute the Toolbar, or any part thereof; (d) remove or alter any proprietary notice or legend regarding Pando's or its licensors' proprietary rights in the Toolbar; (e) use the Toolbar except in accordance with applicable laws and regulations; (f) use the Toolbar to defraud any third party or to distribute obscene or other unlawful materials or information; (g) use the Toolbar in any way to transmit, directly or indirectly, any unsolicited bulk communications (i.e., spam); (h) 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 Toolbar; (i) incorporate, integrate or otherwise include the Toolbar or any portion thereof (including the communications protocols) into any software, program or product that communicates, accesses, or otherwise connects with Pando's networks or other online services; or (j) use or export the Toolbar outside of the United States.
4. OWNERSHIP. The Toolbar is the property of Pando and/or its licensors, and Pando and/or its licensors retain all right, title and interest to the Toolbar, including any intellectual property rights regarding trademarks, service marks and trade secrets, as well as any rights in copyrighted and/or patented materials provided to you as part of the Toolbar. Except for the limited license granted to you in this Agreement, you obtain no rights to the Toolbar, and Pando and/or its licensors reserve all rights not expressly granted to you.
5. FEEDBACK. In the event that you provide Pando with any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Toolbar (collectively "Feedback"), you agree that Pando may use the Feedback to modify the Toolbar and Pando's other products and services and that you will not be due any compensation, including any royalty related to the Toolbar or other product or service that incorporates your Feedback. You grant Pando a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with Pando, unless Pando has entered into a separate agreement with you that provides otherwise.
6. DISCLAIMER. PANDO PROVIDES THE TOOLBAR "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE TOOLBAR RESIDES WITH YOU. PANDO AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DATA ACCURACY. PANDO MAKES NO WARRANTY THAT THE TOOLBAR WILL MEET YOUR REQUIREMENTS, OR THAT YOUR USE OF IT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES PANDO MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TOOLBAR, OR THAT DEFECTS IN THE TOOLBAR WILL BE CORRECTED. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND USE OF THE TOOLBAR. NO CONTENT, ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PANDO THROUGH THE TOOLBAR, ITS WEBSITE, SERVICES, OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL PANDO OR ANY OF ITS LICENSORS, AGENTS OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL OR LOST PROFITS OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE TOOLBAR OR THE PERFORMANCE OR NON-PERFORMANCE OF THE TOOLBAR, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF PANDO HAS BEEN NOTIFIED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT WILL PANDO'S LIABILITY FOR ANY DAMAGES TO YOU OR ANY THIRD PARTY EVER EXCEED ONE HUNDRED DOLLARS (U.S. $100.00) REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT PANDO MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF ITS LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
8. INDEMNITY. You agree to indemnify, defend, and hold harmless Pando from any suits, losses, claims, demands, liabilities, costs and expenses (including reasonable fees for attorneys) that Pando may sustain or incur from: (a) your use of the Toolbar; (b) your breach of any of your obligations or any restrictions set forth in this Agreement, or (c) Pando's enforcement of this Agreement against you.
9. THIRD PARTY OFFERINGS. Third parties may from time to time offer applications or services to access, "plug-in" or interact with the Toolbar. You may only use third-party applications authorized by Pando for use with the Toolbar. Your use of any third-party applications will be at your own risk and subject to the terms and conditions of those third parties. PANDO MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE THIRD PARTY APPLICATIONS OR SERVICES, AND PANDO DISCLAIMS ALL LIABILITY RELATED THERETO.
10. NO DUTY TO CORRECT ERRORS. Without limiting the provisions of Section 1, you acknowledge and agree that Pando has no obligation under this Agreement to correct any defects or errors in the Toolbar furnished to you under this Agreement, regardless of whether you inform Pando of such defects or errors or Pando otherwise is, or becomes aware of, such defects or errors. To the extent Pando provides you with any updates or upgrades to the Toolbar, such updates and upgrades shall be deemed to constitute part of the Toolbar and shall be subject to all terms and provisions set forth in this Agreement, including, without limitation, terms and provisions related to licenses, use restrictions, ownership and distribution of the Toolbar. Pando may provide mandatory updates to the Toolbar with or without notice to you to ensure the continued performance, security and stability of the Toolbar. Pando may also make available other updates to the Toolbar that you will have the option to install.
11. TERMINATION. The Agreement will be in effect as of the date you accept this Agreement, or as of the date you first install or use the Toolbar, whichever first occurs. This Agreement will terminate immediately without notice to you if you breach any term or condition herein. You shall be entitled to terminate this Agreement without cause at any time by stopping use of the Toolbar. Pando shall be entitled to terminate this Agreement without cause upon written notice to you. Upon termination, all rights granted to you under this Agreement will immediately cease, you may not thereafter install or use the Toolbar, and you must delete or destroy all copies of the Toolbar in your possession. All provisions of this Agreement, except for the license grant in Section 1 above, survive the termination of this Agreement. Pando may take any technical remedies to prevent unsolicited bulk communications from entering, utilizing, or remaining within Pando's computer or communications networks.
12. GENERAL PROVISIONS. This Agreement will be governed by the laws of New York State, without regard to, or application of, rules or principles regarding conflicts of law. The state and federal courts located in New York State shall have sole and exclusive jurisdiction over any disputes arising under this Agreement, and you agree to submit to the personal jurisdiction of such courts. You acknowledge that Pando will have the right to seek an injunction if necessary to prevent a breach of your obligations hereunder. If any provision of this Agreement is held to be unenforceable, that provision will be disregarded for purposes of the dispute or other circumstance giving rise to such finding, and the remaining provisions will remain in full force. In the event that Pando prevails in any proceeding or lawsuit brought by either party in connection with this Agreement, Pando will be entitled to receive its costs, expert witness fees and reasonable attorney's fees, including costs and fees on appeal. The failure of Pando to require your performance of any provision in this Agreement shall not affect Pando's full right to require such performance at any time thereafter; nor shall the waiver by Pando of any breach of any provision of this Agreement be taken or held to be a waiver of the provision itself. This Agreement is personal to you, and you may not transfer, assign or delegate your right and/or duties under this Agreement to anyone else. Any attempted assignment or delegation is void. This Agreement, together with the Pando Terms of Service, is the complete and exclusive statement of the agreement between Pando and you, which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.
13. GOVERNMENT USERS. Each of the components that constitute the Toolbar and its related documentation is a "commercial item" as that term is defined at 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Toolbar and any documentation provided with the Toolbar with only those rights set forth in this Agreement.
14. ELECTRONIC NOTICES. You agree to this Agreement electronically. You authorize Pando to provide you any information and notices regarding the Toolbar ("Notices") in electronic form. Pando may provide Notices to you: (a) via e-mail if you have provided a valid email address or (b) by posting the Notice on a website designated by Pando for this purpose. The delivery of any Notice is effective when Pando sends or posts it, regardless of whether you read the Notice or actually receive the delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the Toolbar and terminating this Agreement. As long as you are able to access the internet using the Toolbar, you will be able to receive electronic Notices from Pando.
15. PERFORMANCE AND USAGE INFORMATION. a. Technical Information. When installed, the Toolbar may, from time to time, automatically report back information to Pando's servers related to installation, updates, usage and errors arising in connection with your use of the Toolbar, without notice to you. The primary use of this data is to help diagnose and resolve technical and performance issues in relation to the Toolbar's compatibility with the latest operating systems. b. Feature Usage Information. The Toolbar may also provide Pando with anonymous information about use of the Toolbar's features and buttons. Pando uses this information in the aggregate to determine which Toolbar features and buttons are most popular and useful to its users, and to validate the continued existence and usage of an installed Toolbar. c. Toolbar ID. The Toolbar may contain a specific identification number for the purpose of tracking the number of unique instances of the Toolbar in use. d. Personalization. You may be asked to provide Pando with certain information so that Pando can personalize content presented to you through the Toolbar. For example, you may be asked for your zip code, which could be used to provide you with relevant local weather and/or news reports.