CLIKTHROUGH WEBSITE USER AGREEMENT
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.
THESE TERMS AND CONDITIONS MUST BE ACCEPTED ONLY BY INDICATING
A MANIFESTATION OF ASSENT BY CLICKING THE
"ACCEPT" BUTTON BELOW ("MANIFESTATION OF ASSENT").
This USER AGREEMENT (this "Agreement") is made and entered into either: (a) on the date the Manifestation of Assent was made ("Effective Date") by and between Clikthrough, Inc., a Nevada corporation ("Clikthrough") and the individual that indicates the Manifestation of Assent ("Subscriber") and any legal child (by issue or adoption) authorized by the Subscriber (the Subscriber and any authorized legal child being the "User"); or (b) on the date the individual viewed the Clikthrough Website (the "Effective Date") if the individual did not indicate a Manifestation of Assent (the individual being the "Viewer") (together, Clikthrough and Viewer, or to the extent that Viewer becomes a User, Clikthrough and User, being the "Parties").
In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions and Interpretations.
1.1. Certain terms used herein shall have the meaning ascribed to such terms in Schedule 1.
1.2. Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.
1.3. All the defined terms as set forth in Schedule 1, if defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural or past tense, shall retain the general meaning if used in the singular or present tense.
1.4. In all provisions of this Agreement by which: (a) User makes any covenant, representation or warranty, Viewer shall also be deemed to make such covenant, representation or warranty; (b) Viewer makes any covenant, representation or warranty, User shall not be deemed to automatically make such covenant, representation or warranty; (c) Clikthrough grants to Viewer any right, title or interest, such right, title or interest shall also be deemed to be granted to User; (d) Clikthrough grants to User any right, title or interest, such right, title or interest shall not be deemed to be automatically granted to Viewer.
2. Term. This Agreement shall commence on the Effective Date and continue for a period of one (1) year after the Effective Date (the "Initial Term") unless otherwise terminated as provided herein. The Initial Term shall automatically renew for additional one (1) year periods (each such period being a "Renewal Term") unless either Party (in such Party's sole and absolute discretion) delivers notice to the other Party of such Party's intent not to renew this Agreement (the Initial Term and any and all Renewal Terms being the "Term").
3. Grant of License & Provision of Services/Goods.
Subject to the terms and conditions of this Agreement:
3.1. Clikthrough hereby grants to Viewer a personal, limited, revocable, non-transferable, non-assignable, non-exclusive license to View;
3.2. Only after Clikthrough accepts the Registration (which acceptance is in Clikthrough's sole and absolute discretion) and issues a Confirmation to Viewer (whether or not received) (the foregoing acceptance and issuance being the "Acceptance") shall Viewer become a User.
3.3. Clikthrough hereby grants to User a personal, limited, revocable, non-transferable, non-assignable, non-exclusive license to: (a) View; (b) Hyperlink (the "Hyperlinking License"); and (c) Embed (the "Embedding License");
3.4. Clikthrough may, within Clikthrough's sole and absolute discretion: (a) provide notice to User that User may continue to be a User only on a paid, subscription basis; and/or (b) provide notice to User that User may continue User's exercise of the Hyperlinking License and/or the Embedding License only on a paid, subscription basis.
3.5. Upon notice by Clikthrough pursuant to: (a) Section 3.4 (a), User shall use User's best efforts to disable Hyperlinkages and/or Embeddings within seven (7) days of such notice; (b) Section 3.4 (b), User shall pay the then-applicable subscription rate to continue exercising the Hyperlinking License and the Embedding License.
3.6. Clikthrough makes no covenant, representation nor warranty as to Clikthrough's continuing ability to provide: (a) Viewer with the ability to View; (b) User with the ability to View, Hyperlink or Embed; (c) any specific Services/Goods.
4. User and/or Viewer Representations & Warranties.
User, directly as well as on behalf of User's Representatives, hereby covenants, represents and warrants as of the Effective Date and throughout the Term, the following:
4.1. User is: (a) at least eighteen (18) years old and has the authority to enter into this Agreement; or (b) under eighteen (18) years old, is a legal child of the Subscriber, has the express authorization of the Subscriber to abide by the terms and conditions of this Agreement and shall comply with the terms and conditions of this Agreement;
4.2. User shall not copy, host or house any Website Content in any manner not specifically provided for pursuant to the terms of this Agreement, nor undertake any activity that achieves the same or similar results as copying, hosting or housing Website Content;
4.3. In exercising the Hyperlinking License or the Embedding License, User shall not create Linkages or Embeddings on offensive websites (in Clikthrough's sole and absolute discretion), nor on any website that is discriminatory on any basis, including, without limitation, race, national origin, religion, sex, sexual orientation, nor on any website subscribing to a single political agenda, nor a website containing content that would be rated NC-17 or X by the Motion Picture Association of America, nor a website that is exclusive to any one vendor or corporate organization;
4.4. Viewer shall not: (a) Embed; (b) Hyperlink; (c) copy, host or house any Website Content in any manner not specifically provided for pursuant to the terms of this Agreement; (d) undertake any activity that achieves the same or similar results as (a), (b) and/or (c);
4.5. User shall comply with any modifications to this Agreement made by Clikthrough from time to time (in Clikthrough's sole and absolute discretion) without requirement of notice by Clikthrough, including, without limitation, a limitation or revocation of all or part of the licenses granted and the services offered by Clikthrough pursuant to the terms of this Agreement;
4.6. User has read and shall comply with the Privacy Policy in place as of the Effective date;
4.7. User is and shall remain compliant with all Laws;
4.8. User shall not use the Website Software: (a) in association with, related to, or arising from any pyramid schemes, chain letters, junk electronic mail, spam or any duplicative or unsolicited electronic message; (b) to Distribute any profane, sexual, infringing, indecent, threatening, harassing, vulgar, defamatory, or provocative Content, including, without limitation, through any commenting areas, electronic mail, live chat, news group, bulletin board or forum; nor (c) to Distribute or cause to be distributed any Content containing a virus, bug, Trojan horse, worm, time bomb, cancelbot, corrupted Content, security breach, any intrusion from internal or external sources, or other similar Content that may damage the operation of any Person's computer or property;
4.9. User shall not, without the express written consent of Clikthrough, undertake any activity with regard to Website Content for any purpose outside the scope of such activity specifically provided for pursuant to this Agreement, such consent granted in Clikthrough's sole and absolute discretion;
4.10. User shall not use any metadata associated with Clikthrough Intellectual Property, without the express written consent of Clikthrough (such consent granted in Clikthrough's sole and absolute discretion);
4.11. User shall in no manner represent that User has any right, title or interest in or to the Clikthrough Intellectual Property;
4.12. User shall never Encumber, nor authorize nor enable any Person to Encumber, the Clikthrough Intellectual Property or any portion thereof.
5. Clikthrough Covenants/Warranties.
Clikthrough, directly as well as on behalf of Clikthrough's Representatives, hereby covenants, represents and warrants as of the Effective Date and throughout the Term, that, in accordance with the Digital Millennium Copyright Act of 1998 (the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov), Clikthrough will respond expeditiously to claims of copyright infringement that are reported to Clikthrough's designated copyright agent as identified in Section 6.
6. Copyright Infringement Claim
6.1. User shall direct any copyright infringement claims to Clikthrough's designated copyright agent, consistent with section 512 of the Digital Millennium Copyright Act (17 U.S.C. Section 512). The designated agent to receive notification of claimed infringement, as filed with the Public Information Office of the Copyright Office, is available in the following manners:
U.S. Mail:
Steven A. Gibson, Esq.
Gibson Lowry Burris LLP
7201 West Lake Mead Boulevard
Suite 503
Las Vegas, NV 89128
Telephone: (702) 541-7890
Facsimile: (702) 541-7899
E-mail: sgibson@gibsonlowry.com
6.2. All copyright infringement claims must be in writing and shall include the following information:
6.2.1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
6.2.2. Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single website are covered by a single notification, a representative list of such works at that website;
6.2.3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Clikthrough to locate the material;
6.2.4. Information reasonably sufficient to permit Clikthrough to contact the complaining party, including address, telephone number, and e-mail address;
6.2.5. 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;
6.2.6. 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.
7. Retained Rights.
7.1. Clikthrough may, in Clikthrough's sole and absolute discretion: (a) modify and/or remove any or all of the Website Content without notice; (b) terminate the Registrations of Users, with or without notice, who, including, without limitation, infringe or appear to infringe the intellectual property rights of third Persons; (c) block access of Viewers to the Clikthrough Website who, including, without limitation, infringe or appear to infringe intellectual property rights of third Persons.
7.2. Clikthrough may, in Clikthrough's sole and absolute discretion, amend the Privacy Policy from time to time, with or without notice by Clikthrough.
7.3. Clikthrough reserves all licenses not expressly granted pursuant to the terms of this Agreement. User shall not contest the right, title or interest of Clikthrough in and to the Clikthrough Intellectual Property or the validity of the license granted by Clikthrough pursuant to this Agreement. User shall not at any time apply for any registration of any Intellectual Property which would affect the right, title or interest of Clikthrough in or to the Clikthrough Intellectual Property nor shall User file any document with any Governmental Authority or take any action which would impact any such right, title or interest in or to the Clikthrough Intellectual Property or assist any other Person with such action or document.
7.4. All Rights in and to the Clikthrough Intellectual Property, including, without limitation, the Intellectual Property in the Clikthrough Intellectual Property, exclusively vest in and shall always vest with Clikthrough or its respective designees. User shall not acquire any Rights in or to the Clikthrough Intellectual Property beyond any such Rights specifically provider for pursuant to the terms of this Agreement.
7.5. User shall promptly notify Clikthrough of any unauthorized Exploitation of Clikthrough Intellectual Property by third Persons that come to User's attention. Clikthrough shall have the right, exercisable in Clikthrough's sole and absolute discretion, to institute and control all Claims against third Persons relating to Clikthrough Intellectual Property.
7.6. To the extent User is deemed an owner of any Intellectual Property in the Licensed Intellectual Property or any other Intellectual Property which Clikthrough has Developed or otherwise has a bona fide claim of ownership (whether arising from this Agreement or otherwise), User hereby assigns any and all such Intellectual Property to Clikthrough and shall execute and undertake all documents and all actions necessary to effect the clarification of ownership of all such Intellectual Property in and to Clikthrough and to permit Clikthrough to apply for registration of such Intellectual Property and/or issuances of patents, as well as maintain any registrations or issuances granted.
7.7. Clikthrough retains the right to preclude use of any portion of the Licensed Intellectual Property that is determined to infringe a third Person's Intellectual Property or that is the subject of a prohibition of use by any Governmental Authority (a "Prohibition Event"). If a Prohibition Event occurs and such preclusion follows, then Clikthrough shall use reasonable efforts to provide a substitute to the affected Licensed Intellectual Property for use consistent with the provisions of this Agreement.
8. Disclaimer of all Warranties and Representations.
THE LICENSED INTELLECTUAL PROPERTY IS PROVIDED "AS IS." CLIKTHROUGH DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED INTELLECTUAL PROPERTY OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES HERETO PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (to the extent permitted by law in each respective jurisdiction) OR CONDITIONS OF TITLE, NON INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CLIKTHROUGH KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
9. Remedy.
CLIKTHROUGH SHALL NOT BE HELD LIABLE TO ANY PARTY ON ACCOUNT OF OR DUE TO BREACH OF THIS AGREEMENT IN OR FOR ANY AMOUNT THAT EXCEEDS, IN THE AGGREGATE, THE LESSER OF: (A) ANY FEES RECEIVED BY CLIKTHROUGH FROM USER WITHIN THE PRIOR SIX (6) MONTHS AND (B) ONE HUNDRED DOLLARS ($100) AND CLIKTHROUGH SHALL NOT BE LIABLE TO USER OR VIEWER (NOR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO THE USER'S/VIEWER'S RIGHT, TITLE AND INTEREST) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF CONTENT ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
10. Termination
10.1. In addition to any and all other remedies available to Clikthrough pursuant to the terms of this Agreement, Clikthrough shall have the right to immediately terminate this Agreement, and revoke the licenses granted pursuant to this Agreement, for any or no reason, with or without notice (in Clikthrough's sole and absolute discretion).
10.2. On termination of this Agreement, User shall immediately: (a) remove all Hyperlinkages and Embeddings undertaken by User pursuant to the Hyperlinking License or the Embedding License; (b) cease any further use of Licensed Intellectual Property.
10.3. On termination of this Agreement, Viewer shall immediately cease any further use of the Licensed Intellectual Property. 11. Indemnification.
Notwithstanding any other provision of this Agreement, User shall indemnify and hold Clikthrough and its Representatives (the "Indemnified Parties") harmless from and against any Losses incurred by any of the Indemnified Parties with respect to, arising from or out of any Claim that relates to or arises out of any act or omission of User, including, without limitation, the misuse of the Clikthrough Intellectual Property or breach of this Agreement.
12. Assignment.
This Agreement, including, without limitation, the rights and licenses granted by Clikthrough to User is personal to User, and User shall not assign or transfer any of User's rights or have assumed this Agreement to and by, respectively, third Persons.
13. General Provisions.
13.1. Unless otherwise specified, all terms and provisions of this Agreement shall be applicable throughout the Term (including, without limitation, all covenants and obligations to perform).
13.2. User acknowledges that User's failure to cease further use of the Licensed Intellectual Property upon termination of this Agreement or any violation by User of User's covenants in this Agreement relating to Clikthrough Intellectual Property would result in damage that is largely intangible, but nonetheless real, and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give Clikthrough the right to a court-ordered temporary restraining order and injunction (both preliminary and permanent) without any requirement to post bond and/or other appropriate order to specifically enforce those covenants.
13.3. The provisions herein concerning Intellectual Property shall be construed as independent of any other provision hereof and raising a defense to an obligation of the User in this Agreement related to Intellectual Property shall not impair the on going duty of User to perform in accordance with its own obligations pursuant to this Agreement.
13.4. If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.
13.5. Sections 1, 4, 6, 7, 8, 9, 11, 12, and 13 shall survive any termination of this Agreement.
13.6. This Agreement represents the entire understanding between Clikthrough and User with respect to the Licensed Intellectual Property.
13.7. Clikthrough may provide any notice by posting to the Clikthrough Website, or transmitting such notice by mail, electronic mail or facsimile (in Clikthrough's sole and absolute discretion), and such notice shall satisfy any legal requirement that communications be in writing.
13.8. This Agreement may be changed, waived, discharged or terminated by: (a) Clikthrough with or without notice; or (b) User only by an instrument in writing transmitted by mail, electronic mail or facsimile.
13.9. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and acceptable assigns.
13.10. This Agreement may be executed in one (1) or more counterparts, and each such counterpart shall be deemed an original binding upon the Parties, but all of which together shall constitute one and the same instrument.
13.11. The Parties acknowledge that each of them has reviewed this Agreement and has had the opportunity to have this Agreement reviewed by their attorneys and that any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, including amendments, Schedules or Exhibits.
13.12. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada. User consents to personal jurisdiction, as well as venue for any Claim regarding or arising out of this Agreement in any state or federal court located in Clark County, Nevada.
SCHEDULE 1 – DEFINITIONS
"Acceptance" shall have the meaning ascribed to such term in Section 3.2.
"Advertisement" shall mean an advertisement Embedded in Website Content.
"Agreement" shall mean this User Agreement.
"Claim" shall mean any demand, complaint, request for redress, assertion of a cause of action or other claim whatsoever.
"Clikthrough Intellectual Property" shall mean the Intellectual Property owned, held, used or licensed by Clikthrough, including, without limitation, all Intellectual Property in and to the Licensed Intellectual Property.
"Clikthrough Trade Secrets" shall mean Trade Secrets owned, held, used or licensed by Clikthrough.
"Clikthrough Website" shall mean the website Developed by Clikthrough wherein the Website Software is accessed through the Domain Name.
"Confidential Information" shall mean all the Content relating to, used in or arising out of Clikthrough's business, finances or other operations and held by, owned, licensed, or otherwise possessed by Clikthrough (whether held by, owned, licensed, possessed or otherwise existing in, on or about Clikthrough's offices, residence(s) or facilities and regardless of how such Content came into being, as well as regardless of who created, generated or gathered the Content), including, without limitation, all Content contained in, embodied in (in any Media whatsoever) or relating to Clikthrough's ideas, creations, works of authorship, works of visual art, business documents, Contracts, licenses, business and non-business relationships, correspondence, operations, manuals, performance manuals, operating data, projections, bulletins, supplier and customer lists and data, sales data, cost data, profit data, strategic planning data, financial planning data, designs, logos, motifs, proposed trademarks or service marks, test results, product or service literature, product or service concepts, manufacturing or sales techniques, process data, specification data, know-how, show-how, Software, data bases, research and development information and data; provided, however, that "Confidential Information" shall not include information or data "generally publicly known". The phrase in the previous sentence "generally publicly known" shall not be deemed to include the Content set forth in patents despite the fact that patents have been published by the federal government, unless such embodiment has otherwise been the subject of a publication for general public consumption (other than publication as a patent) or if that embodiment is otherwise utilized generally by Persons in the United States of America in the industry or market within which Clikthrough competes. All provisions protecting "Confidential Information" in this Agreement shall be deemed to also protect "Clikthrough Trade Secrets" as well, but references to "Clikthrough Trade Secrets" shall not be deemed to automatically refer to "Confidential Information."
"Confirmation" shall mean a writing, sent via electronic mail or other electronic Media (in Clikthrough's sole and absolute discretion) to Viewer confirming the receipt of the Registration.
"Content" shall mean all material, information, documents, matter, text, Software, data, graphics, computer-generated displays and interfaces, images, photographs and works of whatsoever nature, including, without limitation, all compilations of the foregoing and all results and/or derivations of the expression of the foregoing.
"Contract" shall mean all agreements, contracts, understandings, undertakings, obligations, and other documents or matters where there is or was an agreement to be bound.
"Control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any Person, or the power to veto major policy decisions of any such Person, whether through the ownership of voting securities, by Contract, or otherwise.
"Develop" shall mean develop, conceive, discover, reduce to practice, create, or otherwise arise out of a Person's efforts in any manner whatsoever and through any means whether now known or hereafter developed.
"Distribute" shall mean post, publish, upload, initiate, assign, distribute, transfer or otherwise convey.
"Domain Name" shall mean the domain name at which the Clikthrough Website resides.
"Effective Date" shall have the meaning attributed to such term in the second paragraph of this Agreement.
"Embed" shall mean incorporate Embedding Code within the body of a webpage exclusively by means provided for by Clikthrough (which means may be amended by Clikthrough from time to time), which means include copying respective Embedding Code and inserting respective Embedding Code into a webpage that is external to the Clikthrough Website, through which webpage a portion or the whole of respective Website Content is viewable.
"Embedding" shall mean the result of that which is Embedded.
"Embedding Code" shall mean code generated by the Website Software that references respective Content residing on the Website Server, which Content lacks certain functionality specific to that Content when viewable on the Clikthrough Website as Website Content, including, without limitation, the ability of Users to engage in certain live chat and commenting with regard to each respective Website Content.
"Embedding License" shall mean a license to Embed no more than ten (10) respective Embeddings: (a) on any one (1) website; (b) on multiple websites, which websites are so related that the websites may be considered the same website.
"Encumber" shall mean to impose a security interest, pledge, hypothecation, lien, mortgage, or any other encumbrance of whatsoever nature.
"Exploit" shall mean to use, make, sell or otherwise exploit in any manner whatsoever (through any means now known or hereafter Developed).
"Governmental Authority" shall mean any federal, state, county, municipal or other sovereign entity or jurisdiction, as well as all subdivisions, agencies and authorities therein.
"Hyperlink" shall mean hyperlink to the Domain Name, any Sub-domains of the Domain Name or any subdirectories of the Domain Name, exclusively by means provided for by Clikthrough, which means include e-mailing a hyperlink, or posting a hyperlink on a third Person social networking website, which means may be amended by Clikthrough from time to time, without the requirement of notice.
"Hyperlinkage" shall mean that which is the result of the definition of Hyperlink.
"Hyperlinking License" shall have the meaning attributed to such term in Section 3.3.
"Initial Term" shall have the meaning attributed to such term in Section 2 of this Agreement.
"Intellectual Property" shall mean all foreign, federal, state and common law trademarks, service marks, domain names, Internet path names and addresses of whatsoever nature, trade dress, copyrights, know-how, show-how, patents, Inventions (whether or not patentable), mask works, Software, proprietary data, customer lists, strategic plans, financial data, Trade Secrets, all other intangible assets of whatsoever nature and all applications for registration and/or issuance with respect to all the foregoing and whether or not any of the foregoing is registerable or patentable, including, without limitation, with respect to all of the foregoing: (i) all goodwill associated with any and all of the foregoing; (ii) all parents, continuations, continuations in part, divisionals, reissues and extensions; and (iii) all moral rights associated with any and all of the foregoing.
"Inventions" shall mean any idea, invention, technique, modification, process, or improvement (whether patentable or not), any industrial design (whether registerable or not), and any work of authorship (whether or not copyright protection may be obtained for it).
"Law" shall mean any constitution, statute, code, rule, regulation or decisional law made by a court of competent jurisdiction or Governmental Authority.
"Licensed Intellectual Property" shall mean the Intellectual Property in and to the Website Software and Website Content.
"Losses" shall mean any and all damages, liabilities, costs, expenses, fees (including, without limitation, attorneys', accountants', investigators', witnesses' and professionals' fees), charges, expenditures, liabilities, damages and other losses of whatsoever nature.
"Manifestation of Assent" shall have the meaning ascribed to such term in opening paragraph of this Agreement.
"Media" shall mean print, document-based medium, television, facsimile, telex, telephony, radio, satellite, cable, wire, computer-based network, network, magnetic means, optical means, electronic means, Internet, intranet, Software, compact and laser disc, digital video displays, video cassettes, and multi-media and any other method (now known or hereafter Developed) for the publication, retention, conveyance, possession or holding of Content.
"Person" shall mean any natural person, corporation, limited liability company, limited partnership, partnership trust, association, organization or other entity of whatsoever nature.
"Privacy Policy" shall mean the document entitled "Clikthrough Website Privacy Policy" found on the Clikthrough Website.
"Registration" shall mean a request by Viewer to become a User, submitted to and received by Clikthrough.
"Renewal Term" shall have the meaning attributed to such term in Section 2 of this Agreement.
"Representatives" shall mean all shareholders, directors, officers, employees, agents, representatives, attorneys, and accountants either holding equity in, retained by, employed by, commissioned by or otherwise Controlled by a subject Person.
"Schedule" shall mean an enumerated schedule all of which shall be deemed attached hereto and incorporated herein by way of the specific reference or references made in this Agreement.
"Section" shall be deemed a reference to an enumerated provision of this Agreement.
"Services/Goods" shall mean goods and/or services made available to Viewers by means of Viewer's interactions with the Clikthrough Website, as such goods and/or services are amended from time to time, in Clikthrough's sole and absolute discretion, without requirement of notice by Clikthrough, including, without limitation, Website Software.
"Services/Goods Person" shall mean a Person that provides Services/Goods, including, without limitation, by means of Advertisements.
"Software" shall mean source code, object code, executable code, or other program or code format whatsoever, whether now known or hereinafter Developed.
"Sub-directory" shall mean every directory residing under the root directory associated with the Domain Name.
"Sub-domain" shall mean a domain that is part of a larger domain name.
"Subscriber" shall have the meaning attributed to such term in the second paragraph of this Agreement.
"Term" shall have the meaning attributed to such term in Section 2 of this Agreement.
"Trade Secrets" shall mean all methodologies (subject to same being the subject of an issued patent), pricing strategies, marketing approaches and other Confidential Information that the Clikthrough reasonably informs (whether orally or in writing) the User from time to time is a trade secret, as well as other Confidential Information reasonably the subject of trade secret protection pursuant to relevant and applicable state statutes (including, without limitation, the Uniform Trade Secrets Act as enacted and promulgated from time to time in Nevada).
"User" shall mean a Person who views the Clikthrough Website, whose Registration has been the subject of Acceptance.
"View" shall mean access and/or execute certain portions of the executable code of the Website Software on a computer that is connected to and accessible through the Internet, thereby allowing a User or Viewer to view Website Content.
"Viewer" shall mean a Person who views the Clikthrough Website, whose Registration has not been the subject of Acceptance.
"Website Content" shall mean the Content viewable on the Clikthrough Website, from time to time.
"Website Server" shall mean a computer owned or controlled by Clikthrough on which the Website Software resides.
"Website Software" shall mean the Software that serves the Clikthrough Website to the World Wide Web.
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.
THESE TERMS AND CONDITIONS MUST BE ACCEPTED ONLY BY INDICATING
A MANIFESTATION OF ASSENT BY CLICKING THE
"ACCEPT" BUTTON BELOW ("MANIFESTATION OF ASSENT").
This USER AGREEMENT (this "Agreement") is made and entered into either: (a) on the date the Manifestation of Assent was made ("Effective Date") by and between Clikthrough, Inc., a Nevada corporation ("Clikthrough") and the individual that indicates the Manifestation of Assent ("Subscriber") and any legal child (by issue or adoption) authorized by the Subscriber (the Subscriber and any authorized legal child being the "User"); or (b) on the date the individual viewed the Clikthrough Website (the "Effective Date") if the individual did not indicate a Manifestation of Assent (the individual being the "Viewer") (together, Clikthrough and Viewer, or to the extent that Viewer becomes a User, Clikthrough and User, being the "Parties").
In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions and Interpretations.
1.1. Certain terms used herein shall have the meaning ascribed to such terms in Schedule 1.
1.2. Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.
1.3. All the defined terms as set forth in Schedule 1, if defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural or past tense, shall retain the general meaning if used in the singular or present tense.
1.4. In all provisions of this Agreement by which: (a) User makes any covenant, representation or warranty, Viewer shall also be deemed to make such covenant, representation or warranty; (b) Viewer makes any covenant, representation or warranty, User shall not be deemed to automatically make such covenant, representation or warranty; (c) Clikthrough grants to Viewer any right, title or interest, such right, title or interest shall also be deemed to be granted to User; (d) Clikthrough grants to User any right, title or interest, such right, title or interest shall not be deemed to be automatically granted to Viewer.
2. Term. This Agreement shall commence on the Effective Date and continue for a period of one (1) year after the Effective Date (the "Initial Term") unless otherwise terminated as provided herein. The Initial Term shall automatically renew for additional one (1) year periods (each such period being a "Renewal Term") unless either Party (in such Party's sole and absolute discretion) delivers notice to the other Party of such Party's intent not to renew this Agreement (the Initial Term and any and all Renewal Terms being the "Term").
3. Grant of License & Provision of Services/Goods.
Subject to the terms and conditions of this Agreement:
3.1. Clikthrough hereby grants to Viewer a personal, limited, revocable, non-transferable, non-assignable, non-exclusive license to View;
3.2. Only after Clikthrough accepts the Registration (which acceptance is in Clikthrough's sole and absolute discretion) and issues a Confirmation to Viewer (whether or not received) (the foregoing acceptance and issuance being the "Acceptance") shall Viewer become a User.
3.3. Clikthrough hereby grants to User a personal, limited, revocable, non-transferable, non-assignable, non-exclusive license to: (a) View; (b) Hyperlink (the "Hyperlinking License"); and (c) Embed (the "Embedding License");
3.4. Clikthrough may, within Clikthrough's sole and absolute discretion: (a) provide notice to User that User may continue to be a User only on a paid, subscription basis; and/or (b) provide notice to User that User may continue User's exercise of the Hyperlinking License and/or the Embedding License only on a paid, subscription basis.
3.5. Upon notice by Clikthrough pursuant to: (a) Section 3.4 (a), User shall use User's best efforts to disable Hyperlinkages and/or Embeddings within seven (7) days of such notice; (b) Section 3.4 (b), User shall pay the then-applicable subscription rate to continue exercising the Hyperlinking License and the Embedding License.
3.6. Clikthrough makes no covenant, representation nor warranty as to Clikthrough's continuing ability to provide: (a) Viewer with the ability to View; (b) User with the ability to View, Hyperlink or Embed; (c) any specific Services/Goods.
4. User and/or Viewer Representations & Warranties.
User, directly as well as on behalf of User's Representatives, hereby covenants, represents and warrants as of the Effective Date and throughout the Term, the following:
4.1. User is: (a) at least eighteen (18) years old and has the authority to enter into this Agreement; or (b) under eighteen (18) years old, is a legal child of the Subscriber, has the express authorization of the Subscriber to abide by the terms and conditions of this Agreement and shall comply with the terms and conditions of this Agreement;
4.2. User shall not copy, host or house any Website Content in any manner not specifically provided for pursuant to the terms of this Agreement, nor undertake any activity that achieves the same or similar results as copying, hosting or housing Website Content;
4.3. In exercising the Hyperlinking License or the Embedding License, User shall not create Linkages or Embeddings on offensive websites (in Clikthrough's sole and absolute discretion), nor on any website that is discriminatory on any basis, including, without limitation, race, national origin, religion, sex, sexual orientation, nor on any website subscribing to a single political agenda, nor a website containing content that would be rated NC-17 or X by the Motion Picture Association of America, nor a website that is exclusive to any one vendor or corporate organization;
4.4. Viewer shall not: (a) Embed; (b) Hyperlink; (c) copy, host or house any Website Content in any manner not specifically provided for pursuant to the terms of this Agreement; (d) undertake any activity that achieves the same or similar results as (a), (b) and/or (c);
4.5. User shall comply with any modifications to this Agreement made by Clikthrough from time to time (in Clikthrough's sole and absolute discretion) without requirement of notice by Clikthrough, including, without limitation, a limitation or revocation of all or part of the licenses granted and the services offered by Clikthrough pursuant to the terms of this Agreement;
4.6. User has read and shall comply with the Privacy Policy in place as of the Effective date;
4.7. User is and shall remain compliant with all Laws;
4.8. User shall not use the Website Software: (a) in association with, related to, or arising from any pyramid schemes, chain letters, junk electronic mail, spam or any duplicative or unsolicited electronic message; (b) to Distribute any profane, sexual, infringing, indecent, threatening, harassing, vulgar, defamatory, or provocative Content, including, without limitation, through any commenting areas, electronic mail, live chat, news group, bulletin board or forum; nor (c) to Distribute or cause to be distributed any Content containing a virus, bug, Trojan horse, worm, time bomb, cancelbot, corrupted Content, security breach, any intrusion from internal or external sources, or other similar Content that may damage the operation of any Person's computer or property;
4.9. User shall not, without the express written consent of Clikthrough, undertake any activity with regard to Website Content for any purpose outside the scope of such activity specifically provided for pursuant to this Agreement, such consent granted in Clikthrough's sole and absolute discretion;
4.10. User shall not use any metadata associated with Clikthrough Intellectual Property, without the express written consent of Clikthrough (such consent granted in Clikthrough's sole and absolute discretion);
4.11. User shall in no manner represent that User has any right, title or interest in or to the Clikthrough Intellectual Property;
4.12. User shall never Encumber, nor authorize nor enable any Person to Encumber, the Clikthrough Intellectual Property or any portion thereof.
5. Clikthrough Covenants/Warranties.
Clikthrough, directly as well as on behalf of Clikthrough's Representatives, hereby covenants, represents and warrants as of the Effective Date and throughout the Term, that, in accordance with the Digital Millennium Copyright Act of 1998 (the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov), Clikthrough will respond expeditiously to claims of copyright infringement that are reported to Clikthrough's designated copyright agent as identified in Section 6.
6. Copyright Infringement Claim
6.1. User shall direct any copyright infringement claims to Clikthrough's designated copyright agent, consistent with section 512 of the Digital Millennium Copyright Act (17 U.S.C. Section 512). The designated agent to receive notification of claimed infringement, as filed with the Public Information Office of the Copyright Office, is available in the following manners:
U.S. Mail:
Steven A. Gibson, Esq.
Gibson Lowry Burris LLP
7201 West Lake Mead Boulevard
Suite 503
Las Vegas, NV 89128
Telephone: (702) 541-7890
Facsimile: (702) 541-7899
E-mail: sgibson@gibsonlowry.com
6.2. All copyright infringement claims must be in writing and shall include the following information:
6.2.1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
6.2.2. Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single website are covered by a single notification, a representative list of such works at that website;
6.2.3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Clikthrough to locate the material;
6.2.4. Information reasonably sufficient to permit Clikthrough to contact the complaining party, including address, telephone number, and e-mail address;
6.2.5. 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;
6.2.6. 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.
7. Retained Rights.
7.1. Clikthrough may, in Clikthrough's sole and absolute discretion: (a) modify and/or remove any or all of the Website Content without notice; (b) terminate the Registrations of Users, with or without notice, who, including, without limitation, infringe or appear to infringe the intellectual property rights of third Persons; (c) block access of Viewers to the Clikthrough Website who, including, without limitation, infringe or appear to infringe intellectual property rights of third Persons.
7.2. Clikthrough may, in Clikthrough's sole and absolute discretion, amend the Privacy Policy from time to time, with or without notice by Clikthrough.
7.3. Clikthrough reserves all licenses not expressly granted pursuant to the terms of this Agreement. User shall not contest the right, title or interest of Clikthrough in and to the Clikthrough Intellectual Property or the validity of the license granted by Clikthrough pursuant to this Agreement. User shall not at any time apply for any registration of any Intellectual Property which would affect the right, title or interest of Clikthrough in or to the Clikthrough Intellectual Property nor shall User file any document with any Governmental Authority or take any action which would impact any such right, title or interest in or to the Clikthrough Intellectual Property or assist any other Person with such action or document.
7.4. All Rights in and to the Clikthrough Intellectual Property, including, without limitation, the Intellectual Property in the Clikthrough Intellectual Property, exclusively vest in and shall always vest with Clikthrough or its respective designees. User shall not acquire any Rights in or to the Clikthrough Intellectual Property beyond any such Rights specifically provider for pursuant to the terms of this Agreement.
7.5. User shall promptly notify Clikthrough of any unauthorized Exploitation of Clikthrough Intellectual Property by third Persons that come to User's attention. Clikthrough shall have the right, exercisable in Clikthrough's sole and absolute discretion, to institute and control all Claims against third Persons relating to Clikthrough Intellectual Property.
7.6. To the extent User is deemed an owner of any Intellectual Property in the Licensed Intellectual Property or any other Intellectual Property which Clikthrough has Developed or otherwise has a bona fide claim of ownership (whether arising from this Agreement or otherwise), User hereby assigns any and all such Intellectual Property to Clikthrough and shall execute and undertake all documents and all actions necessary to effect the clarification of ownership of all such Intellectual Property in and to Clikthrough and to permit Clikthrough to apply for registration of such Intellectual Property and/or issuances of patents, as well as maintain any registrations or issuances granted.
7.7. Clikthrough retains the right to preclude use of any portion of the Licensed Intellectual Property that is determined to infringe a third Person's Intellectual Property or that is the subject of a prohibition of use by any Governmental Authority (a "Prohibition Event"). If a Prohibition Event occurs and such preclusion follows, then Clikthrough shall use reasonable efforts to provide a substitute to the affected Licensed Intellectual Property for use consistent with the provisions of this Agreement.
8. Disclaimer of all Warranties and Representations.
THE LICENSED INTELLECTUAL PROPERTY IS PROVIDED "AS IS." CLIKTHROUGH DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED INTELLECTUAL PROPERTY OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES HERETO PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (to the extent permitted by law in each respective jurisdiction) OR CONDITIONS OF TITLE, NON INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CLIKTHROUGH KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
9. Remedy.
CLIKTHROUGH SHALL NOT BE HELD LIABLE TO ANY PARTY ON ACCOUNT OF OR DUE TO BREACH OF THIS AGREEMENT IN OR FOR ANY AMOUNT THAT EXCEEDS, IN THE AGGREGATE, THE LESSER OF: (A) ANY FEES RECEIVED BY CLIKTHROUGH FROM USER WITHIN THE PRIOR SIX (6) MONTHS AND (B) ONE HUNDRED DOLLARS ($100) AND CLIKTHROUGH SHALL NOT BE LIABLE TO USER OR VIEWER (NOR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO THE USER'S/VIEWER'S RIGHT, TITLE AND INTEREST) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF CONTENT ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
10. Termination
10.1. In addition to any and all other remedies available to Clikthrough pursuant to the terms of this Agreement, Clikthrough shall have the right to immediately terminate this Agreement, and revoke the licenses granted pursuant to this Agreement, for any or no reason, with or without notice (in Clikthrough's sole and absolute discretion).
10.2. On termination of this Agreement, User shall immediately: (a) remove all Hyperlinkages and Embeddings undertaken by User pursuant to the Hyperlinking License or the Embedding License; (b) cease any further use of Licensed Intellectual Property.
10.3. On termination of this Agreement, Viewer shall immediately cease any further use of the Licensed Intellectual Property. 11. Indemnification.
Notwithstanding any other provision of this Agreement, User shall indemnify and hold Clikthrough and its Representatives (the "Indemnified Parties") harmless from and against any Losses incurred by any of the Indemnified Parties with respect to, arising from or out of any Claim that relates to or arises out of any act or omission of User, including, without limitation, the misuse of the Clikthrough Intellectual Property or breach of this Agreement.
12. Assignment.
This Agreement, including, without limitation, the rights and licenses granted by Clikthrough to User is personal to User, and User shall not assign or transfer any of User's rights or have assumed this Agreement to and by, respectively, third Persons.
13. General Provisions.
13.1. Unless otherwise specified, all terms and provisions of this Agreement shall be applicable throughout the Term (including, without limitation, all covenants and obligations to perform).
13.2. User acknowledges that User's failure to cease further use of the Licensed Intellectual Property upon termination of this Agreement or any violation by User of User's covenants in this Agreement relating to Clikthrough Intellectual Property would result in damage that is largely intangible, but nonetheless real, and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give Clikthrough the right to a court-ordered temporary restraining order and injunction (both preliminary and permanent) without any requirement to post bond and/or other appropriate order to specifically enforce those covenants.
13.3. The provisions herein concerning Intellectual Property shall be construed as independent of any other provision hereof and raising a defense to an obligation of the User in this Agreement related to Intellectual Property shall not impair the on going duty of User to perform in accordance with its own obligations pursuant to this Agreement.
13.4. If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.
13.5. Sections 1, 4, 6, 7, 8, 9, 11, 12, and 13 shall survive any termination of this Agreement.
13.6. This Agreement represents the entire understanding between Clikthrough and User with respect to the Licensed Intellectual Property.
13.7. Clikthrough may provide any notice by posting to the Clikthrough Website, or transmitting such notice by mail, electronic mail or facsimile (in Clikthrough's sole and absolute discretion), and such notice shall satisfy any legal requirement that communications be in writing.
13.8. This Agreement may be changed, waived, discharged or terminated by: (a) Clikthrough with or without notice; or (b) User only by an instrument in writing transmitted by mail, electronic mail or facsimile.
13.9. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and acceptable assigns.
13.10. This Agreement may be executed in one (1) or more counterparts, and each such counterpart shall be deemed an original binding upon the Parties, but all of which together shall constitute one and the same instrument.
13.11. The Parties acknowledge that each of them has reviewed this Agreement and has had the opportunity to have this Agreement reviewed by their attorneys and that any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, including amendments, Schedules or Exhibits.
13.12. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada. User consents to personal jurisdiction, as well as venue for any Claim regarding or arising out of this Agreement in any state or federal court located in Clark County, Nevada.
SCHEDULE 1 – DEFINITIONS
"Acceptance" shall have the meaning ascribed to such term in Section 3.2.
"Advertisement" shall mean an advertisement Embedded in Website Content.
"Agreement" shall mean this User Agreement.
"Claim" shall mean any demand, complaint, request for redress, assertion of a cause of action or other claim whatsoever.
"Clikthrough Intellectual Property" shall mean the Intellectual Property owned, held, used or licensed by Clikthrough, including, without limitation, all Intellectual Property in and to the Licensed Intellectual Property.
"Clikthrough Trade Secrets" shall mean Trade Secrets owned, held, used or licensed by Clikthrough.
"Clikthrough Website" shall mean the website Developed by Clikthrough wherein the Website Software is accessed through the Domain Name.
"Confidential Information" shall mean all the Content relating to, used in or arising out of Clikthrough's business, finances or other operations and held by, owned, licensed, or otherwise possessed by Clikthrough (whether held by, owned, licensed, possessed or otherwise existing in, on or about Clikthrough's offices, residence(s) or facilities and regardless of how such Content came into being, as well as regardless of who created, generated or gathered the Content), including, without limitation, all Content contained in, embodied in (in any Media whatsoever) or relating to Clikthrough's ideas, creations, works of authorship, works of visual art, business documents, Contracts, licenses, business and non-business relationships, correspondence, operations, manuals, performance manuals, operating data, projections, bulletins, supplier and customer lists and data, sales data, cost data, profit data, strategic planning data, financial planning data, designs, logos, motifs, proposed trademarks or service marks, test results, product or service literature, product or service concepts, manufacturing or sales techniques, process data, specification data, know-how, show-how, Software, data bases, research and development information and data; provided, however, that "Confidential Information" shall not include information or data "generally publicly known". The phrase in the previous sentence "generally publicly known" shall not be deemed to include the Content set forth in patents despite the fact that patents have been published by the federal government, unless such embodiment has otherwise been the subject of a publication for general public consumption (other than publication as a patent) or if that embodiment is otherwise utilized generally by Persons in the United States of America in the industry or market within which Clikthrough competes. All provisions protecting "Confidential Information" in this Agreement shall be deemed to also protect "Clikthrough Trade Secrets" as well, but references to "Clikthrough Trade Secrets" shall not be deemed to automatically refer to "Confidential Information."
"Confirmation" shall mean a writing, sent via electronic mail or other electronic Media (in Clikthrough's sole and absolute discretion) to Viewer confirming the receipt of the Registration.
"Content" shall mean all material, information, documents, matter, text, Software, data, graphics, computer-generated displays and interfaces, images, photographs and works of whatsoever nature, including, without limitation, all compilations of the foregoing and all results and/or derivations of the expression of the foregoing.
"Contract" shall mean all agreements, contracts, understandings, undertakings, obligations, and other documents or matters where there is or was an agreement to be bound.
"Control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any Person, or the power to veto major policy decisions of any such Person, whether through the ownership of voting securities, by Contract, or otherwise.
"Develop" shall mean develop, conceive, discover, reduce to practice, create, or otherwise arise out of a Person's efforts in any manner whatsoever and through any means whether now known or hereafter developed.
"Distribute" shall mean post, publish, upload, initiate, assign, distribute, transfer or otherwise convey.
"Domain Name" shall mean the domain name at which the Clikthrough Website resides.
"Effective Date" shall have the meaning attributed to such term in the second paragraph of this Agreement.
"Embed" shall mean incorporate Embedding Code within the body of a webpage exclusively by means provided for by Clikthrough (which means may be amended by Clikthrough from time to time), which means include copying respective Embedding Code and inserting respective Embedding Code into a webpage that is external to the Clikthrough Website, through which webpage a portion or the whole of respective Website Content is viewable.
"Embedding" shall mean the result of that which is Embedded.
"Embedding Code" shall mean code generated by the Website Software that references respective Content residing on the Website Server, which Content lacks certain functionality specific to that Content when viewable on the Clikthrough Website as Website Content, including, without limitation, the ability of Users to engage in certain live chat and commenting with regard to each respective Website Content.
"Embedding License" shall mean a license to Embed no more than ten (10) respective Embeddings: (a) on any one (1) website; (b) on multiple websites, which websites are so related that the websites may be considered the same website.
"Encumber" shall mean to impose a security interest, pledge, hypothecation, lien, mortgage, or any other encumbrance of whatsoever nature.
"Exploit" shall mean to use, make, sell or otherwise exploit in any manner whatsoever (through any means now known or hereafter Developed).
"Governmental Authority" shall mean any federal, state, county, municipal or other sovereign entity or jurisdiction, as well as all subdivisions, agencies and authorities therein.
"Hyperlink" shall mean hyperlink to the Domain Name, any Sub-domains of the Domain Name or any subdirectories of the Domain Name, exclusively by means provided for by Clikthrough, which means include e-mailing a hyperlink, or posting a hyperlink on a third Person social networking website, which means may be amended by Clikthrough from time to time, without the requirement of notice.
"Hyperlinkage" shall mean that which is the result of the definition of Hyperlink.
"Hyperlinking License" shall have the meaning attributed to such term in Section 3.3.
"Initial Term" shall have the meaning attributed to such term in Section 2 of this Agreement.
"Intellectual Property" shall mean all foreign, federal, state and common law trademarks, service marks, domain names, Internet path names and addresses of whatsoever nature, trade dress, copyrights, know-how, show-how, patents, Inventions (whether or not patentable), mask works, Software, proprietary data, customer lists, strategic plans, financial data, Trade Secrets, all other intangible assets of whatsoever nature and all applications for registration and/or issuance with respect to all the foregoing and whether or not any of the foregoing is registerable or patentable, including, without limitation, with respect to all of the foregoing: (i) all goodwill associated with any and all of the foregoing; (ii) all parents, continuations, continuations in part, divisionals, reissues and extensions; and (iii) all moral rights associated with any and all of the foregoing.
"Inventions" shall mean any idea, invention, technique, modification, process, or improvement (whether patentable or not), any industrial design (whether registerable or not), and any work of authorship (whether or not copyright protection may be obtained for it).
"Law" shall mean any constitution, statute, code, rule, regulation or decisional law made by a court of competent jurisdiction or Governmental Authority.
"Licensed Intellectual Property" shall mean the Intellectual Property in and to the Website Software and Website Content.
"Losses" shall mean any and all damages, liabilities, costs, expenses, fees (including, without limitation, attorneys', accountants', investigators', witnesses' and professionals' fees), charges, expenditures, liabilities, damages and other losses of whatsoever nature.
"Manifestation of Assent" shall have the meaning ascribed to such term in opening paragraph of this Agreement.
"Media" shall mean print, document-based medium, television, facsimile, telex, telephony, radio, satellite, cable, wire, computer-based network, network, magnetic means, optical means, electronic means, Internet, intranet, Software, compact and laser disc, digital video displays, video cassettes, and multi-media and any other method (now known or hereafter Developed) for the publication, retention, conveyance, possession or holding of Content.
"Person" shall mean any natural person, corporation, limited liability company, limited partnership, partnership trust, association, organization or other entity of whatsoever nature.
"Privacy Policy" shall mean the document entitled "Clikthrough Website Privacy Policy" found on the Clikthrough Website.
"Registration" shall mean a request by Viewer to become a User, submitted to and received by Clikthrough.
"Renewal Term" shall have the meaning attributed to such term in Section 2 of this Agreement.
"Representatives" shall mean all shareholders, directors, officers, employees, agents, representatives, attorneys, and accountants either holding equity in, retained by, employed by, commissioned by or otherwise Controlled by a subject Person.
"Schedule" shall mean an enumerated schedule all of which shall be deemed attached hereto and incorporated herein by way of the specific reference or references made in this Agreement.
"Section" shall be deemed a reference to an enumerated provision of this Agreement.
"Services/Goods" shall mean goods and/or services made available to Viewers by means of Viewer's interactions with the Clikthrough Website, as such goods and/or services are amended from time to time, in Clikthrough's sole and absolute discretion, without requirement of notice by Clikthrough, including, without limitation, Website Software.
"Services/Goods Person" shall mean a Person that provides Services/Goods, including, without limitation, by means of Advertisements.
"Software" shall mean source code, object code, executable code, or other program or code format whatsoever, whether now known or hereinafter Developed.
"Sub-directory" shall mean every directory residing under the root directory associated with the Domain Name.
"Sub-domain" shall mean a domain that is part of a larger domain name.
"Subscriber" shall have the meaning attributed to such term in the second paragraph of this Agreement.
"Term" shall have the meaning attributed to such term in Section 2 of this Agreement.
"Trade Secrets" shall mean all methodologies (subject to same being the subject of an issued patent), pricing strategies, marketing approaches and other Confidential Information that the Clikthrough reasonably informs (whether orally or in writing) the User from time to time is a trade secret, as well as other Confidential Information reasonably the subject of trade secret protection pursuant to relevant and applicable state statutes (including, without limitation, the Uniform Trade Secrets Act as enacted and promulgated from time to time in Nevada).
"User" shall mean a Person who views the Clikthrough Website, whose Registration has been the subject of Acceptance.
"View" shall mean access and/or execute certain portions of the executable code of the Website Software on a computer that is connected to and accessible through the Internet, thereby allowing a User or Viewer to view Website Content.
"Viewer" shall mean a Person who views the Clikthrough Website, whose Registration has not been the subject of Acceptance.
"Website Content" shall mean the Content viewable on the Clikthrough Website, from time to time.
"Website Server" shall mean a computer owned or controlled by Clikthrough on which the Website Software resides.
"Website Software" shall mean the Software that serves the Clikthrough Website to the World Wide Web.