Excite Software Product Privacy Notice and License Terms
IMPORTANT - PLEASE READ CAREFULLY
BY CLICKING ON THE "SUBMIT", "DOWNLOAD", "I ACCEPT" OR SUCH SIMILAR BUTTON OR LINK AS MAY BE DESIGNATED FOR PURPOSES OF INITIATING THE DOWNLOAD OF THE APPLICABLE EXCITE SOFTWARE PRODUCT (THE "EXCITE APPLICATION") AND USING THE EXCITE APPLICATION YOU AGREE TO BE LEGALLY BOUND BY THESE LICENSE TERMS AND CONDITIONS. FOR PURPOSES OF THIS END USER LICENSE AGREEMENT, THE EXCITE APPLICATION INCLUDES ANY AND ALL SOFTWARE OR OTHER APPLICATIONS WHICH ARE INCLUDED THEREIN.
1. License Grant
Subject to the terms and conditions of this Agreement, The Excite Network (also referred to as "we", "us" or "our") grants you a non-exclusive, revocable, limited license, to (a) download and install the most current version of the Excite Application (including all updates thereto) and (b) use the Excite Application(s) you download and install for your personal, non-commercial purposes.
2. License Conditions
You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), or in any way transfer any Excite Application or use any Excite Application for the benefit of any third party through any outsourcing or time-sharing arrangement or through the operation of any service bureau. You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the Excite Application, or attempt to do so for any reason. Further, you may not access, create or modify our source code in any way. You do not have the right to and may not create derivative works of the Excite Application. All modifications or enhancements to the Excite Applications remain the sole property of The Excite Network. You understand that we, in our sole discretion, may modify or discontinue or suspend your right to access any of our services or use the Excite Application at any time, and we may at any time suspend or terminate any license hereunder and disable the Excite Applications.
You acknowledge and agree that the Excite Application, including any and all software included therein provided by third parties is licensed, not sold to you, by Focus Interactive, Inc. d/b/a The Excite Network ("Excite"). You acknowledge that the Excite Application, including all code, content, protocols, software, and documentation provided to you by Excite in conjunction with the Excite Application or our services are Excite's property or the property of Excite's licensors, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. "Intellectual Property Rights" means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights. You may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice we have placed on any Excite Application. All rights not expressly granted hereunder are expressly reserved to Excite and Excite's licensors. "Excite", "Speedbar", and the Excite Logo are trademarks of Focus Interactive, Inc, its parent or subsidiaries. All Rights Reserved.
4. Content and Infringement
You understand that all content, including, without limitation all data, links, articles, search results, graphic or video messages and all information, text, software, music, sound, graphics or other materials ("Content") made available or accessible through the Excite Applications or our services, whether publicly available or privately transmitted, is the sole responsibility of the entity from whom it originated. You understand and agree that by using an Excite Application, you may be exposed to Content that may be offensive, indecent or objectionable in your community. You agree to accept all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content. Under no circumstances will Excite be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for loss or damage of any kind incurred as a result of the use of any Content posted or transmitted via the Excite Application.
We are not responsible for any content such as audio, video, text or any other files owned by users of the Excite Applications. All of the Excite Applications are exposed to various security issues, and should be regarded as unsecure. By accepting this Agreement, you indicate that you understand, acknowledge and agree that by using the Excite Applications, you may be subject to various risks, including the exposure of data you have downloaded or have offered to share, and that you accept all such risk as solely your risk and responsibility.
In addition, all content made available or accessed through the Excite Applications is the property of the applicable content owner and may be protected by applicable laws including without limitation those relating to Intellectual Property Rights. This Agreement gives you no rights to such content.
Excite respects and expects its users to respect the rights of copyright holders. On notice, Excite will act appropriately to remove content under our control that infringes the copyright rights of others. Excite reserves the right to disable the access to the Excite Applications and our services by anyone who uses them to repeatedly infringe the Intellectual Property Rights of others. If you believe that our services contain elements that infringe your copyrights in your work, please follow our Notice and Procedure for Making Claims of Copyright Infringement found here.
5. Operation and Removal
Excite Applications DO NOT: (i) collect or report back to Excite any information about your activity when you are not on the Excite Website; (ii) collect or "screen-scrape" any search queries or information that you provide to any other web sites; or (iii) serve pop-ups or contextual advertisements. Excite may obtain unique information about you only when you specifically and knowingly provide such information in connection with use of the Excite Website or to personalize the Excite Application (such as when you enter a contest, purchase a product, or contact our customer service department).
The Excite Application also sends a configuration request when you start your browser. This request is approximately 5k in size and includes only anonymous data such as IP address, browser type, and information about the specific release date and/or version of your Excite Application. This information is used only for purposes of delivering search services and content in accordance with your preferences, providing us with data on an aggregated basis relating to retention, usage, and monetization, or to determine if you need an update.
You may uninstall or remove any Excite Application at any time by using the Windows add/remove programs function or following the instructions listed on our website at http://www.excite.com. However, by uninstalling the Excite Application, you may be unable to access some of our services and, in some instances, unable to use software with which the Excite Application was bundled.
6. Your Obligations
You represent and warrant that you are either the owner or an authorized user of the computer where the Excite Application is installed. No registration is required to use the Excite Applications, However, if you elect to provide any information in connection with the use of any other services Excite offers, you agree to provide and to maintain fully accurate, complete and current information. If Excite has reasonable grounds to suspect that such information is inaccurate, not current or not complete, Excite has the right to suspend or terminate your use of the Excite Application or our services, and pursue any appropriate legal remedies. You agree that we shall have the right to use the information you provide to us for the purposes described in this Agreement and in furtherance of your use of our services. You may use our services only for lawful purposes. The services described herein are subject to, and you agree that you shall at all times comply with, all local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to use of the Excite services and Excite Application. You agree not to use the Excite Application or any other services provided by Excite to conduct any business or activity or solicit the performance of any activity, which is prohibited by law, or any contractual provision by which you are bound.
7. Access and Interference; Passwords
You agree that you will not use any robot, spider, other automatic or manual device or process to interfere or attempt to interfere with the proper working of any of our Excite Applications, services or content, except to remove our Excite Applications from a computer of which you are an owner or authorized user. You may not violate or attempt to violate the security of our services. We reserve the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You agree that it is your responsibility to install anti-virus software and related protections against viruses, Trojan horses, worms, time bombs, cancelbots or other techniques that may have the effect of damaging, destroying, disrupting or otherwise impairing a computer's functionality or operation, which may inadvertently be transferred to your computer through your use of the Excite Application.
In order to access certain services which may from time to time be offered by Excite, you may be required to pay fees, accept additional terms and conditions and/or, establish an account including an unique identification code or name (an "ID") and password (a "Password"). You are the sole and exclusive owner of any Password and ID combination issued or chosen by to you. Maintaining the confidentiality and security of your Password(s) and ID(s) is solely your responsibility. You are fully responsible for the use and protection of each Password and ID issued to or chosen by you and for all transactions undertaken by means of any account opened, held, accessed or used via such Password and ID. You shall notify us immediately and confirm in writing any unauthorized use of accounts or any breach of security, including without limitation any loss, theft or unauthorized use of your Password(s), and/or ID(s) or any related account. If we have reasonable grounds to suspect that the security of your Password and/or ID has been compromised, we have the right to suspend or terminate your account, refuse any and all current or future use of the services, and pursue any appropriate legal remedies. We shall not be responsible for any losses incurred in connection with any misuse of any Password or ID.
8. Electronic Signatures and Agreements
You acknowledge and agree that by clicking on the button labeled "SUBMIT", "DOWNLOAD", "I ACCEPT" or such similar links as may be designated by Excite to download the software to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE EXCITE APPLICATION OR SERVICES OFFERED BY EXCITE. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
9. Disclaimer of Warranty
YOU ACCESS AND USE THE EXCITE APPLICATIONS AND SERVICES AND ANY CONTENT AVAILABLE THROUGH THE EXCITE APPLICATIONS OR ANY WEBSITES LINKED TO THEREFROM AT YOUR SOLE RISK.
WE PROVIDE THE EXCITE APPLICATIONS AND THE CONTENT ON AN "AS IS," AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION OR NON-INFRINGEMENT.
WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES PROVIDED BY THIRD PARTIES ACCESSIBLE ON OR THROUGH OUR EXCITE APPLICATIONS OR OUR SERVICES.
NEITHER WE NOR OUR DIRECTORS, OFFICERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, CONTRACTORS, THIRD PARTY VENDORS, FACILITIES, INFORMATION PROVIDERS, LICENSORS, NOR ANY EXCHANGES, CLEARING ORGANIZATIONS OR OTHER SUPPLIERS PROVIDING DATA, INFORMATION, OR SERVICES (EACH A "PROVIDER") MAKE ANY REPRESENTATION OR WARRANTY: (A) AS TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF THE EXCITE APPLICATIONS OR EXCITE'S SERVICES OR ANY INFORMATION, SERVICE OR TRANSACTION PROVIDED THEREBY, OR (B) THAT THE EXCITE APPLICATIONS OR EXCITE'S SERVICES WILL BE AVAILABLE OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, (C) THAT ERRORS OR DEFECTS RELATED TO THE EXCITE APPLICATIONS OR THE SERVICES WILL BE CORRECTED OR (D) THAT WE CAN IDENTIFY ANY IDENTITY THEFT. WE ALSO DO NOT WARRANT THAT THE EXCITE APPLICATIONS OR THE SERVICES OR THE INFORMATION AVAILABLE THROUGH THE SERVICES, IS APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
The above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied warranties.
You may terminate this Agreement at any time by uninstalling and destroying all copies of the Excite Applications in your possession or control. We may terminate this Agreement, disable Excite Applications or cease providing any service at any time in our sole discretion.
11. Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL EXCITE, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES OR THEIR EMPLOYEES, DISTRIBUTORS, SUPPLIERS, MERCHANT PARTNERS, SOFTWARE PROVIDERS, ADVERTISERS, DIRECTORS OR AGENTS (EACH A "PROTECTED PARTY," COLLECTIVELY "PROTECTED PARTIES") BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR OTHER RELIEF ARISING OUT OF, OR RELATED TO, THIS AGREEMENT OR TO YOUR USE OR INABILITY TO USE ANY OR ALL OF THE EXCITE APPLICATIONS OR EXCITE SERVICES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, GOODWILL, OR OTHER INTANGIBLE LOSSES (EVEN IF EXCITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
SOLELY TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, FOR ANY REASON, HELD TO BE INAPPLICABLE OR UNENFORCEABLE IN WHOLE OR IN PART, THEN THE PROTECTED PARTIES' AGGREGATE LIABILITY, FOR ANY REASON AND FOR ANY CAUSE OF ACTION AND ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF DAMAGES ACTUALLY INCURRED OR THE AVERAGE REVENUE RECEIVED BY EXCITE PER USER OF THE EXCITE APPLICATION PER MONTH AS CALCULATED BY EXCITE BASED ON THE USE OF THE EXCITE APPLICATIONS (AND NOT OTHER PRODUCTS OR SERVICES OFFERED BY EXCITE) MULTIPLIED BY THE NUMBER OF COMPLETE MONTHS YOU HAVE BEEN A EXCITE APPLICATION USER. THE PROTECTED PARTIES ASSUME NO LIABILITY HEREUNDER FOR, AND SHALL HAVE NO OBLIGATION TO DEFEND YOU OR TO PAY COSTS, DAMAGES OR ATTORNEYS' FEES FOR, ANY CLAIM BASED UPON: (I) ANY METHOD OR PROCESS IN WHICH THE EXCITE APPLICATION MAY BE USED BY YOU; (II) ANY RESULTS OF USING THE EXCITE APPLICATION; (III) ANY USE OF OTHER THAN A CURRENT UNALTERED RELEASE OF ONE OF THE EXCITE APPLICATIONS; OR (IV) THE COMBINATION, OPERATION OR USE OF ANY OF THE EXCITE APPLICATION(S) WITH THIRD PARTY PROGRAMS OR DATA.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
12. Export Controls
The Excite Application and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Afghanistan, Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) 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 the Excite Application, you agree to the foregoing and 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, and that you will otherwise comply with all applicable export control laws.
13. Notice to Government End Users
Any Excite Application, software and documentation hereunder downloaded or otherwise installed for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights as "Commercial Items," 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 or 48 C.F.R. §227.7202, as applicable. Pursuant to Federal Acquisition Regulation 12.212 (48 C.F.R. § 12.212), the U.S. Government shall have only those rights specified in the license contained herein. The U.S. Government shall not be entitled to (i) technical information that is not customarily provided to the public or to (ii) use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as specified herein. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
14. Applicable Law
Any claim or controversy arising out of or related to this Agreement, or the products or services we provide or distribute shall be settled by individual binding arbitration in accordance with the rules of the American Arbitration Association then effective. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. Further, in any such dispute, under no circumstances will you be permitted to obtain awards for, and you hereby waive all rights to claim punitive, incidental or consequential damages, and you further waive all rights to have damages multiplied or increased. This shall not preclude Excite from seeking any injunctive relief for protection of our Intellectual Property Rights. The arbitration shall take place in Irvington, New York or such other location as the parties may mutually agree. The arbitrator(s) shall issue a reasoned award, and any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The arbitrator(s) will each be a natural person who has never been employed (either as an employee or as an independent consultant) by either of the parties, or any parent, subsidiary or affiliate thereof, and will be generally familiar with the business of the parties. The arbitrator(s) may upon request exclude from use in the arbitration proceeding any evidence not made available to the other party pursuant to a proper discovery request. The cost of the arbitration will be borne equally by the parties. The parties, their representatives, other participants, the arbitrator(s) and the administrator(s) of the arbitration will hold in confidence the existence, content and outcome of the arbitration. The parties understand that: (i) arbitration is final and binding on the parties; (ii) the parties are waiving their right to seek remedies in court, including the right to a jury trial; (iii) pre-arbitration discovery is generally more limited than and different from court procedures; and (iv) any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
16. Successor Agreements
The terms of this Agreement may change from time to time. You should check back at the website regularly to determine if any material changes have been made. We will prominently post material changes on the Excite website at least 14 days prior to the effective date of the change and will also attempt to provide you with an on-line notice informing you when such material changes have been made to this Agreement, which notice shall contain an active link that you can use to view a web page containing or linking to the revised Agreement.
You agree that your continued use of any Excite Application or our services after the effective date of any change will constitute your affirmative consent to this revised Agreement. If you do not accept such revisions, you must affirmatively indicate to us by email that you do not accept the successor Agreement and remove all of our Excite Applications from your computer and cease all access to and use of our services hereunder. Failure to remove our Excite Applications from your computer will be deemed an acceptance of the terms of the most current Agreement.
17. Order of Precedence
This Agreement and any accepted successor Agreement governs your use of our Excite Applications and our services as described herein. To the extent that any provision of this Agreement, or any supplemental agreement offered as any part of any registration for additional Excite Applications or services, conflicts with any provision of other agreements between you and Excite or any of its related or affiliated entities, the terms of the then-current Agreement, shall, as to the specific subject matter of this Agreement, take precedence over the conflicting term(s) of that other agreement.
The Excite Software and the Services are not intended for use by or availability to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MAY NOT DOWNLOAD, INSTALL OR USE ANY EXCITE SOFTWARE AND YOU MAY NOT ACCESS EXCITE SERVICES.
Last Updated: February 3, 2004.