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OpenInstall, Inc. - Terms of Service


Introduction

These Terms of Service ("Terms") contain important information regarding your rights, obligations and restrictions in connection with your use of the CloudInstaller™ software ("Software"), our services ("Services") and the OpenInstall.com website ("Website"). By accessing, visiting or using the Website you accept and agree to be bound by these Terms, whether or not you register as a OpenInstall member ("Member"). IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE OUR WEBSITE OR SERVICES, OR REGISTER AS A MEMBER.

In these Terms, "OpenInstall", "we", "us" or the like refers to OpenInstall, Inc., and "you", "your" and the like refers to the person that is using the Services, whether or not such person is a user or Member of our Website.

These Terms are a binding agreement between you and OpenInstall. You agree that we may modify these Terms from time to time in our sole discretion and without prior notice. Any modification of these Terms will be posted on the Website. The modified Terms will become effective upon such posting. Your continued use of the Website and Service after posting of the amended Terms indicates your acceptance of and agreement to be bound by the amended Terms. If you do not agree to a modification, you should stop visiting OpenInstall.com immediately.

Our Services

For Advertisers Only. In general, OpenInstall is an enterprise level installation platform that allows our advertiser clients to efficiently distribute software products via the Internet. If you are any advertiser client, the terms and conditions of our services to you are set forth in the written agreement between you and OpenInstall.

End Users Only. The Software is a cloud based software installation platform that enables the End User to download and install various applications, including titles, offers and promotions that are provided by publishers and advertisers within the OpenInstall network. Please read the terms of service and privacy policies for each of the advertisers and publishers that are offering software through the Software.

To use our Services, you may be required to provide certain information, including your name and email address, as well as certain other information that our advertisers may request. ("Registration Data"). Please see also see our's Privacy Policy for the information that is collected, including the Registration Data, and how it is used. You agree to provide accurate Registration Data. You may not impersonate, imitate or pretend to be somebody else when registering and/or setting up an account with us. We reserve the right to delete accounts created by users who appropriate the name, likeness, e-mail address, or other personally identifiable information of another individual.

You represent and warrant that you are of legal age in your jurisdiction to create binding contractual and financial obligations and to assume any liability that you may incur as a result of your use of SourceForge.net. You must be 13 years of age or older to use the Services. If you are at least 13 years of age, but under the age of 18, your parent or legal guardian, as applicable, must expressly consent to your use of the Services. Our Services are not intended for those under the age of 13.

By providing us your email address, you consent to our using the email address to send you Service-related notices, including among other things notices required by law, in lieu of postal mail. You may not opt out of Service-related e-mails.

The Services may allow you to download, install, access or use software, products or services ("Third Party Services") provided by third party providers. Your access or use of the Third Party Services may be subject to applicable third party rights, terms and conditions with respect to such Third Party Services, and may require that you accept additional terms of use for such access or use. You acknowledge and agree that we are not responsible for any content, websites, software, products or services with respect to the Third Party Services. We do not warrant or endorse, and do not assume and will not have liability to you or any other person for, any Third Party Services, and that your use of such Third Party Services is at your own risk.

The form and nature of our Services may change from time to time without prior notice to you. You acknowledge and agree that we may stop (whether permanently or temporarily) providing the Services (or any features or software within the Services) to you or to users generally at our sole discretion, without prior notice to you. Software that you may use, download or install from the Services may automatically download and install updates from time to time from OpenInstall. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit OpenInstall to deliver these to you) as part of your use of the Services.

Privacy Policy

Your use of our Software and Services is subject to our Privacy Policy. To view the OpenInstall Privacy Policy, please visit http://www.openinstall.com/privacy.html. Our Policy does not apply to your use of any Third Party Services. You acknowledge and agree that your access or use of the Third Party Services may cause information to be shared among your system and such Third Party Service in a manner not governed by these Terms or our Privacy Policy, and that your rights with respect to privacy in such circumstances will be governed solely by the terms of use or privacy policies, if any, for such Third Party Service. These Terms incorporate by reference our Privacy Policy and other terms and conditions that may be referenced herein or therein or to which you may be asked to agree in connection with certain Services from time to time.

Email Policy

You may receive periodic emails from OpenInstall if you opted to receive such email at the time of registration on the Website. If you would rather not receive email from OpenInstall, please send an email to and you will be unsubscribed from receiving further mailings.

Intellectual Property Rights

All content available on our Website and relating to our Services, including site design, text, graphics, interfaces and the selection of arrangements thereof is copyrighted by OpenInstall, with all rights reserved, or is the property of OpenInstall or the providers of the Third Party Services, protected by intellectual property rights. OpenInstall grants you a non-exclusive, non-transferable, limited right to access and use the Services in accordance with these Terms. The terms of any use of Third Party Services are between you and Third Party Service provider and are not set forth in these Terms. You acknowledge that you do not acquire any ownership rights by your permitted use of the Website, its content or any Services. Unless you have our express written consent (or consent from the owner of any Content, as applicable), without limitation, you may not:

  • copy, translate, modify, or make derivative works of the Products, Website or any content or any part thereof;
  • redistribute, sublicense, rent, publish, sell, assign, lease, market, transfer, or otherwise make the Products or Services available to third parties;
  • reverse engineer, decompile or otherwise attempt to extract the source code of the Products or Services or any part thereof, unless this is expressly permitted or required by applicable law; or
  • delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in Website or by way of the Services.

You may not interfere or attempt to interfere with the operation of the Website or Services in any way through any means, software, routine or device including, but not limited to, spamming, hacking, uploading computer viruses, or the means expressly prohibited by any provision of these terms and conditions of use. You may not deep-link to this Website for any purpose or access this Website with any robot, spider, web crawler, extraction software, or any other automated process or device to scrape, copy, or monitor any portion of this Website or any information, content, or material on this Website. We reserve all statutory and common law rights against any person or entity who violates this paragraph. You may not link or frame to any pages of this Website or any content contained therein, whether in whole or in part.

Any trade names, trademarks, service marks, logos, domain names or other distinctive brand features used with, on or relating to any Third Party Services ("Third Party Marks") available on or through the Services are the property of the Third Party Providers or their respective licensors. Unless you have been expressly authorized in writing by such Third Party Providers or their respective licensors, you will not use, and have no rights in, any Third Party Marks. You agree that you will not use any trade name, trademark, service mark, logo, domain name, or other distinctive brand feature of any company, entity or organization in any that is likely or intended to cause confusion as to the owner or authorized user of such names, marks, logos or features.

Disputes

You are solely responsible for your use of the Services, the Website and the Third Party Services. OpenInstall reserves the right, but has no obligation, to monitor or take action regarding disputes. In the event of disputes, OpenInstall may in its sole discretion take such action as it deems appropriate, including but not limited to suspending or terminating your account or your ability to access the Website and Services.

DISCLAIMER OF WARRANTIES

THE WEBSITE AND ALL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER THESE TERMS NOR ANY OTHER DOCUMENT INCORPORATED BY REFERENCE HEREIN NOR ANY DOCUMENTATION FURNISHED UNDER ANY OF THEM ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THE WEBSITE OR ANY SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE, THAT THE QUALITY OF ANY SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OPENINSTALL WILL MEET YOUR EXPECTATIONS; AND THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OPENINSTALL OR THROUGH OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. ANY SOFTWARE OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

Termination

OpenInstall may, under certain circumstances and without prior notice, immediately terminate your OpenInstall account and access to the Website, the Services and the Third Party Services we make available. Cause for such termination shall include, but not be limited to:

  • breaches or violations of the Terms or other incorporated agreements or guidelines;
  • requests by law enforcement or other government agencies;
  • a request by you (self-initiated account deletions);
  • unexpected technical or security issues or problems;
  • extended periods of inactivity; and/or
  • engagement by you in fraudulent or illegal activities.

LIMITATION OF LIABILITY

OPENINSTALL, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS, OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF OPENINSTALL IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM:

  • YOUR USE OF OR INABILITY TO USE THE SERVICES;
  • OPENINSTALL'S ACCEPTANCE, REJECTION, REMOVAL, OR CANCELLATION OF ANY CONTENT OR OTHER INFORMATION FROM YOU;
  • THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITE OR VIA THE SERVICES;
  • AUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
  • STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR
  • ANY OTHER MATTER RELATING TO THE WEBSITE OR OPENINSTALL.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, OPENINSTALL'S MAXIMUM LIABILITY TO YOU WILL NOT, FOR ANY REASON, INDIVIDUALLY OR IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO OPENINSTALL IN RESPECT OF THE SERVICES. TO THE EXTENT THAT YOU ARE IN A JURISDICTION THAT DOES NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity

You agree to indemnify, defend, and hold harmless OpenInstall, and its officers, directors, shareholders, employees and agents from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) your use of the Services; and (b) any alleged violation of any rights of others arising from or related to your use of the Services (including without limitation, any claim of patent, trademark or copyright infringement, defamation, breach of confidentiality, privacy violation, false or deceptive advertising or sales practices). OpenInstall reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, which will not excuse your indemnity obligations.

Governing Law; Arbitration

These Terms and the relationship between you and OpenInstall are governed by the laws of the State of California without regard to its conflict of law provisions. By using the Website and the Services, you agree that (1) any claim, dispute, or controversy you may have against OpenInstall arising out of, relating to, or connected in any with these Terms, the Website or the Services, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA ("Rules and Procedures"); (2) the arbitration shall be held at a location determined by the AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and OpenInstall; (3) the arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, OpenInstall will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (5) ANY CLAIMS BROUGHT BY YOU MUST BE BROUGHT YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; AND (6) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. With the exception of subparts (5) and (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (5) or (6) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor OpenInstall shall be entitled to arbitrate their dispute. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. For more information on AAA and its Rules and Procedures, you may visit the AAA website at http://www.adr.org

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or otherwise to these Terms must be filed within six months (6) after such claim or cause of action arose or be forever barred.

General

OpenInstall will not be responsible for any failure or delay in performance due to circumstances beyond its reasonable control, including, without limitation, acts of god, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, service outages resulting from equipment and/or software failure and/or telecommunications failures, power failures, network failures, failures of third party service providers (including providers of internet services and telecommunications).

OpenInstall's failure to exercise or enforce any right or provision of these will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and agree that the other provisions of these Terms remain in full force and effect.

Copyright © 2011 OpenInstall, Inc.
All Rights Reserved.

Terms updated September 15, 2011.