Popup Nuker License Agreement

CAREFULLY READ THE FOLLOWING LICENSE AGREEMENT. BY DOWNLOADING OR INSTALLING, REGISTERING FOR, OR USING THE Popup Nuker SERVICE AND/ OR SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU AGREE WITH THE TERMS OF THE LICENSE, PLEASE PRESS THE ‘ACCEPT’ BUTTON. IF YOU DO NOT AGREE WITH IT, PRESS ‘DECLINE’ AND YOU SHOULD NOT INSTALL THE SOFTWARE.

1.LICENSE GRANT. "You" means the person or company who is being licensed to use the software and/ or service. "We", "Us", "Popup Nuker" means TrekBlue, Inc. "Software" means software owned by TrekBlue, Inc., and selected third party software, including any upgrades, modified versions, updates, additions and copies of the software.

We hereby grant you a nonexclusive, non-transferable, limited license to use one copy of the Software on the computer which this license agreement was accepted on subject to terms and conditions set forth below. The Software is "in use" on a computer when it is loaded into temporary memory (RAM) or installed into the permanent memory of a computer - for example, a hard disk, CD-ROM or other storage device.

2.TITLE. This license is not a sale. We remain the owner of all right, title and interest in the Software.

3.ARCHIVAL OR BACKUP COPIES. You may not keep back up copies of this software.

4.THINGS YOU MAY NOT DO. United States copyright laws and international treaties protect the Software. You must treat the Software like any other copyrighted material - for example a book. You may NOT:

--copy the Software in any form,

--modify or adapt the Software or merge it into another program,

--reverse engineer, disassemble, decompile or make any attempt to discover the source of this Software,

--place the Software onto a server so that it is accessible via a public network such as the Internet, or

--sublicense, rent, lease, or lend any portion of the Software or Documentation.

5.LIMITED WARRANTY. Use of Popup Nuker Software and/ or service is at your own risk. The services, content, audio transmissions or other date of any kind or nature made available at the site are provided "AS IS", and "AS AVAILABLE" basis without warranty of any kind, either express, implies, or statutory.

To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND WE DISCLAIM AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, regardless of whether we know or had reason to know of your particular needs.

IN NO EVENT SHALL TrekBlue, Inc. BE LIABLE TO ANYONE FOR ANY UNAVAILABILITY, DELAYS, INACCURACIES, ERRORS OR OMISSIONS WITH RESPECT TO ANY INFORMATION USED RECEIVED OR TRANSMITTED BY THE SOFTWARE AND/ OR SERVICE, OR FOR ANY DAMAGE ARISING THEREFROM OR OCCASIONED THEREBY, OR FOR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION, INCLUDING WITHOUT LIMITATION ANY RISK OF THE INTRODUCTION OF COMPUTER VIRUSES, INVASION OF PRIVACY AND ANY RISK ARISING OUT OF ANY CONTENT TRANSMITTED OR RECEIVED IN CONNECTION WITH THE USE OF THE SOFTWARE OR THE SERVICE. YOU ASSUME THE ENTIRE RISK FOR THE ACCURACY, ADEQUACY, VALIDITY, COMPLETENESS, CORECTNESS AND QUALITY OF ANY INFORMATION.
No employee, agent, dealer, or distributor of ours is authorized to modify this limited warranty, or to make any additional warranties.

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

6.LIMITED REMEDY. TrekBlue, Inc.'S LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE WILL NOT EXCEED $1.00 (ONE DOLLAR) OR THE FEE, IF ANY, PAID BY LICENSEE FOR THE SOFTWARE, WHICHEVER IS GREATER.

7.DAMAGE LIMITATIONS. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SEPCIAL, INCIDETNAL, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES.

YOU EXPRESSLY RELEASE INDEMNIFY TrekBlue, Inc., IT'S EMPLOYEES, AGENTS, DISTRIBUTORS, SUPPLIERS, PARTNERS, ADVERTISERS, BOARD OF DIRECTORS FROM ANY AND ALL CLAIMS, DEMANDS OR CAUSES OF ACTION BOTH KNOWN AND UNKNOWN ARISING OUT OF OR IN ANY WAY CONNECTED WITH Popup Nuker. THE RIGHTS GRANTED HEREIN ARE PERPETUAL AND WORLDWIDE.

SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF OUR LIMITED WARRANTY AND/OR LIMITED REMEDY SHALL BE HELD INEFFECTIVE OR TO HAVE FAILED THEIR ESSENTIAL PURPOSES, OUR TOTAL LIABILITY FOR DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE LICENSE FEES PAID BY YOU FOR THE SOFTWARE LICENSED HEREUNDER.

WILLFUL MISCONDUCT AND DEATH OR INJURY. The limitation of liability referred to in this article shall not apply in the event of (i) willful misconduct or gross negligence on the part of Popup Nuker and/or (ii) in the event of claims for compensation as a result of death or injury. However, in no event shall Popup Nuker's total liability to you for all damages exceed the amount of a $1.00 (U.S. dollars).

8.TERMS AND TERMINATION. If you are eighteen years of age or older to use Popup Nuker, you must first: (a) register via our web site, (b) read and accept the Popup Nuker License Agreement of which this Notice and Terms of Service are part, (c) agree to be bound by the terms of that License by pressing the ‘YES’ button on the Popup Nuker download screen and (d) pay the applicable fees (see section 10, below).

You understand and agree that Popup Nuker is provided "AS-IS" and that we assume no responsibility for the failure or inaccuracy of Popup Nuker. You are responsible for paying all applicable taxes for all hardware, software, service and other costs you may incur in connection with your use of Popup Nuker, and providing all equipment and software necessary to connect to our web site and to use Popup Nuker via the Internet. We may add, delete or change some or all of our services provided in connection with Popup Nuker at any time. This may include download of necessary software modules. NOTE THAT POPUP NUKER WILL NOT DOWNLOAD ANY ADVERTISING COMPONENTS OR OTHER THIRD PARTY PROGRAMS. Any new features that augment or enhance Popup Nuker FUNCTIONALITY will be subject to these notices, terms and conditions and will also be subject to all other applicable Popup Nuker policies, terms, notices and conditions. We may establish general practices and limits concerning use of Popup Nuker. You agree to accept these general practices and limits from time to time to modify or discontinue, temporarily or permanently, Popup Nuker (or any portion thereof), or your access to Popup Nuker (or any portion thereof), for any reason or no reason, with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of Popup Nuker or you access to Popup Nuker.

Popup Nuker reserves the right to terminate this License Agreement immediately and without prior notice for any or no cause, at any time. You may terminate at any time by destroying the Software in your possession. You agree on termination of this license to destroy all copies of the Software in your possession. You may uninstall the software by following the instructions available on Popup Nuker’s web site http: //www.PopupNuker.com

9.AGREE MENT TO PROVIDE TRUE, CORRECT, AND ACCURATE INFORMATION FOR YOUR USE OF Popup Nuker. In consideration of your use of Popup Nuker, you agree that the information you provide to us is and will be true, correct and accurate in all respects, and you agree to update such information as necessary to keep it true, correct and accurate in all respects. If you provide any information that is not true, correct and accurate in all respects, or we have reasonable grounds to suspect that such information is not true, correct and accurate in all respects, we have the right to suspend or terminate your use of Popup Nuker.

10. CONFIDENTIALITY. The Software contains trade secrets and proprietary know-how that belong to us and it is made available to you in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF OUR TRADE SECRET RIGHTS.

11.UPDATES. You grant Popup Nuker permission to update features and/or functions of the Popup Nuker software at any time. You acknowledge that Popup Nuker and TrekBlue, Inc. or agents of TrekBlue, Inc. do not need to notify you of this occurance prior to or after the fact. PopupNukek will never be updated or modified except to enhance the performance of the program or interface.

12.MODIFICATIONS TO OR SUSPENSION OF SERVICE. Popup Nuker reserves the right to modify or discontinue the Service temporarily or permanently, at any time, with or without notice. Popup Nuker will attempt to provide reasonable notice of such changes to the services or the site.

13.LINKS TO THIRD-PARTY SITES. The Popup Nuker may provide, or third parties may provide, links to other World Wide Web sites or other Internet resources. Any third-party sites to which the Popup Nuker may link are not under control of Popup Nuker. Popup Nuker does not have any responsibility or liability for any information, contents, communications or materials available on such third-party sites.

13.APPLICABLE LAW.

a. This License Agreement as well as all disputes arising out of or in connection with this Agreement shall be governed by the laws of the state of California, United States, without regard to or application of choice of law rules or principles.

b. Any dispute arising out of or in connection with this License Agreement, or in future agreements resulting there from, shall be exclusively resolved before the competent court in San Diego County, California, United States.

14.NO RESALE OF SERVICE. None of Popup Nuker's users is allowed to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.

15.Popup Nuker'S PROPRIETARY RIGHTS. The Popup Nuker name, the Popup Nuker logo, and other Popup Nuker related properties are trademarks of TrekBlue, Inc. All other trademarks appearing on the Service are trademarks of their respective owners.

16.NOTICE. The Service may provide notices of changes to the License Agreement or other matters by displaying notices or links to notices to you generally on the Service. You are obliged to update your knowledge hereto continuously. Lack of knowledge does not imply that these terms are not accepted by you.

17.ARBITRATION. Any claim or controversy arising out of or related to this Agreement, or the products or services we provide and/or distribute shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. You agree to pay any/all direct and/or indirect costs arising out or related to the claim and/or controversy, including but not limited to legal costs, transportation, accommodation, telephone calls. You also agree to pay Popup Nuker $300 per hour to attend arbitration including transport time. The foregoing shall not preclude Popup Nuker from seeking any injunctive relief for protection of Popup Nuker's intellectual property rights.

18.MISCELLANEOUS.

a. This License Agreement constitutes the entire understanding of you and the Popup Nuker application with respect to the subject matter hereof. There are no understandings, agreements, conditions or representations, oral or written, express or implied, with reference to the subject matter hereof that are not merged herein, expressly referenced herein, or superseded hereby.

b. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software.

c. The failure or delay of Popup Nuker to exercise or enforce any rights or provision of the License Agreement may not constitute a waiver of such right or provision.

d. All provisions which must survive in order to give effect to their meaning, shall survive any expiration or termination of this License Agreement, including without limitation all of your representations, warranties and indemnification obligations.

e. Should any part of this License Agreement be held invalid by any court or tribunal, such invalidity shall not affect the validity of any remaining part, which will remain in full force and effect as if this License Agreement had been executed without that part having been held to be invalid.

JUly 2004