THIS SOFTWARE LICENSE AND AGREEMENT AND THE DESK DANCER USERS TERMS OF SERVICE EXPLAIN HOW YOU MAY USE THE DESK DANCER SOFTWARE AND SITE RELATED SERVICES INSTALLED BY THIS INSTALLER PROGRAM. BY CLICKING ON THE "I ACCEPT" BUTTON IN THIS INSTALLER PROGRAM, YOU GIVE YOUR PERMISSION AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS LISTED BELOW, AND YOU WILL THEN BE ALLOWED TO USE THE DESK DANCER SOFTWARE AND SITE RELATED SERVICES. IF YOU DISAGREE WITH ANY OF THE TERMS AND CONDITIONS BELOW, EUREKA NETWORKS, INC., WHICH OWNS THE DESK DANCER SOFTWARE AND SITE RELATED SERVICES, DOES NOT GRANT YOU PERMISSION TO USE THIS SOFTWARE OR ANY DESK DANCER SITE RELATED SERVICES. DESK DANCER SITE RELATED SERVICES ARE NOT SUITABLE FOR USERS UNDER EIGHTEEN (18) YEARS OF AGE. THESE SPECIFIC SITE RELATED SERVICES ARE NOT AVAILABLE TO USERS UNDER EIGHTEEN (18) YEARS OF AGE. HOWEVER, YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OF AGE OR OLDER TO DOWNLOAD THIS DESK DANCER SOFTWARE. IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE YOU MUST CLICK ON THE CANCEL BUTTON NOW. AFTER READING THE TERMS AND CONDITIONS LISTED BELOW, CLICK ON THE CANCEL BUTTON IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS AND ACCEPT THEM AS LEGALLY BINDING.
PART I: SOFTWARE LICENSE AND AGREEMENT
In consideration for your use of the Desk Dancer software and any updates, customizations and/or enhancements (the "Licensed Software"), and website(s) ("site related service(s)") provided by Eureka Marketing Inc. ("Licensor"), you ("Licensee") agree to the following terms and conditions.
Warranty.
None. This software is provided "as-is", without any express or implied warranty.
Restricted to Adults
Access to the software and/or the Website is restricted to adults only. Licensee must be over the age of 18 or the legal age as defined by Licensee's country or state of residence to use the Product and/or the Website. Licensee agree to be solely responsible for (i) maintaining such controls over the use and/or access to the Product and/or the Website by minors in Licensee's family, or (ii) limiting access to Licensee's computer or login to the extent necessary to restrict its use to adults.
Licensee understands that the Desk Dancer software is owned by the Licensor. Third party software which may be bundled with this software (included in Licensed Software) and which does not require acceptance by Licensee of a separate End User License Agreement or Terms of Service applicable to that software prior to download or installation, is licensed by Licensor with the right sublicense to Licensee under this Agreement. Any of Licensor's licensors may have the right to enforce the provisions of this license agreement relating to the software and other property licensed to Licensor. All rights not granted herein to Licensee are automatically retained by the Licensor.
Licensee is herein granted a non-exclusive, non-transferable license that allows Licensee to install and use the Licensed Software on up to three personal computers. This license is in effect until one of the parties terminates the license. Licensee may terminate the license by no longer using the Licensed Software or site related services. Licensor may terminate the license at any time for any reason. Licensor may change the terms of this license and agreement at any time. This license and/or agreement may also be terminated if Licensee violates any provision of the license and/or agreement or accompanying Desk Dancer Users Terms of Service. Upon such termination, Licensee shall immediately stop using the Licensed Software and either destroy all copies thereof or return them to Licensor.
Licensee acknowledges the Licensed Software and its structure, organization, and source code constitute valuable trade secrets of Licensor. Accordingly, Licensee agrees not to (i) copy, perform, distribute, modify, adapt, alter, translate, or create derivative works (as defined by the U.S. Copyright Act) from the Licensed Software; (ii) merge the Licensed Software with other software; (iii) sell, assign, sublicense, lease, rent, or loan the Licensed Software to any third party; (iv) port, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Licensed Software; or (v) otherwise use the Licensed Software except as expressly allowed in this license and agreement. Licensee may not seek intellectual property protection for the Licensed Software or any site related services.
LICENSEE SHALL NOT USE THE LICENSED SOFTWARE IN ANY WAY THAT VIOLATES ANY LOCAL, STATE, FEDERAL OR INTERNATIONAL LAW, OR THE LAWS OF ANY NATION, INCLUDING BUT NOT LIMITED TO THE POSTING OF INFORMATION THAT MAY VIOLATE THIRD PARTY RIGHTS, THAT MAY DEFAME A THIRD PARTY, THAT MAY BE OBSCENE OR PORNOGRAPHIC, THAT MAY HARASS OR ASSAULT OTHERS, OR THAT MAY VIOLATE HACKING OR OTHER COMPUTER CRIME REGULATIONS. Licensor does not monitor or edit any transmissions, postings, routings or other materials which Licensee may send, post, route, transmit or otherwise move through or with the Licensed Software. Licensee may not use the Licensed Software or site related services in any manner that is unlawful, or in any way which is not in complete conformance with this license and agreement and the accompanying Desk Dancer Users Terms of Service.
The Licensed Software may not be shipped or exported into any U.S. embargoed country. Licensee shall comply with all applicable export and import control laws and regulations in its use of the Licensed Software and, in particular, Licensee shall not export or re-export the Licensed Software without all required United States and foreign government licenses. Licensee understands that access and use of the Licensed Software from outside the United States may constitute export of technology and technical data which may implicate export regulations and/or require an export license.
Licensee may not generate income from the Licensed Software in any manner whatsoever. If Licensee violates this absolute prohibition, Licensor may revoke this license and Licensor will not be responsible for any resulting damages. Additionally, Licensor may sue to recover income, or any portion thereof, generated by Licensee from the Licensed Software.
This license is nontransferable. Licensee may not transfer the license to any third party.
Licensee acknowledges and understands that all title and intellectual property rights ("IP rights") in and to any third party content that is not contained in the Licensed Software, but may be accessed, transmitted or perceived through use of the Licensed Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. Licensee may not make available, stream, or share any copyrighted material to which the Licensee does not hold the copyright without the express written permission of the copyright owner. For example, Licensee may not connect the Desk Dancer audio feed to a sound card to stream copyrighted material such as a commercial radio broadcast or copyrighted MP3 or other digitally formatted copyrighted content. The burden to determine if any such material is subject to a copyright or other IP rights rests solely with the Licensee. Licensee hereby agrees not to hold Licensor liable and covenants to indemnify and hold harmless Licensor, its affiliates, any entity that owns a software plugin that is bundled with the Licensed Software, and Licensor's assigns and successors, for any and all damages, monetary relief, injunctive or other equitable relief, liabilities, causes of action, judgments, or claims which may arise in connection with Licensee's use of, reliance on, or derivatives works made from the Licensed Software which violate any third party IP rights. Licensee may be personally liable for damages and may owe money to the copyright owner for Licensee's infringement of third party copyrights or other rights.
Licensee acknowledges and understands that Licensor is a Service Provider and is not liable under the safe harbor protections under the Digital Millennium Copyright Act for any violation or infringement of third party copyright or other rights by Licensee.
Licensee may not defame, slander, harass, use a false identity, or violate the rights of any third party when using the Licensed Software and/or any site related services.
In the event of a merger, sale of assets or other corporate transaction involving Licensor, or in the event of a bankruptcy, insolvency or other action involving creditors of Licensor, or under other similar or related circumstances, Licensor reserves the right to disclose and/or sell information about Licensee and licensee's account to any successor to licensor's business.
Notwithstanding any other provision of this license and/or agreement, Licensee shall not permit any user of the Licensed Software to take any action which, if taken by the Licensee, would be considered a breach of any term of this license and/or agreement and/or the Desk Dancer Users Terms of Service.
Eureka Marketing Inc. Ownership and Liability.
The Licensed Software is owned by Eureka Marketing Inc. Licensee agrees that any legal action against the software authors, Eureka Marketing Inc., its owners, officers, directors, employees, contractors, agents or attorneys must be taken in Los Angeles County, California, United States of America, and Licensee herein consents to venue in Los Angeles County California. By accepting this license and agreement, Licensee also consents to personal jurisdiction in any State or Federal court located in Los Angeles County, California, United States of America, and waives any objection thereto, including but not limited to the defense of forum non conveniens.
Relationship and Ownership of Licensor and Licensee.
The Licensed Software is protected by trademarks, service marks, international treaties, copyright, and other proprietary laws of the U.S. and other countries. Licensor retains exclusive ownership of all worldwide copyrights, trade marks, service marks, trade secrets, patent rights, moral rights, property rights and all other industrial and intellectual property rights in the Licensed Software and documentation, including any derivative works, modifications, updates, or enhancements. All rights in and to the Licensed Software not expressly granted to Licensee under this license are expressly reserved by Licensor. Nothing in this license and/or agreement shall be deemed to grant, by implication, estoppel or otherwise, a license under any of Licensor's other existing or future copyrights, patents, trademarks, service marks or other intellectual property.
Licensee agrees to follow all proprietary laws that apply to licensee's use of the Licensed Software and any site related services. This license gives Licensee no rights, titles or any interests in any intellectual property owned by the Licensor, other than as granted herein, and this license creates no relationship between the Licensor and Licensee other than that of Licensor and Licensee. Licensee is not allowed to use the Licensed Software and/or any site related services without the licensor's prior approval.
The Licensed Software may use certain software developed by third parties. This third party software allows the Licensed Software to accomplish certain functions. Some of the third party software, such as facial recognition technology, or Licensed Software functions such as parental control features, may be intended to protect the Licensee from exposure to inappropriate content with the use of the Licensed Software. Such protective third party software and control functions are provided as a courtesy and in good faith by Licensor. The ability of protective software to achieve its protective purpose cannot be guaranteed. Licensee agrees not to hold Licensor liable and not to bring suit against Licensor for any cause of action arising from the performance of any such protective or any other third party or bundled software. All rights held in this third party software are reserved by the owners of the third party software and the owners of the third party software may enforce such rights against Licensee directly in the owners' own names.
Licensee agrees not to exploit, decompile, reverse engineer, or disassemble the Licensed Software or any of its components. This license may be immediately terminated without notice if Licensee violates these restrictions.
The Licensed Software's site related services may change from free services to pay services at any time and the Licensor may change its pricing structure at any time and in any way. The Licensor may discontinue its site related services at any time for any reason. The Licensor may charge for any Licensed Software and/or site related services support. The Licensor may limit software features or access to certain parts of the site related services with no warning or notice and with no liability. The Licensor may stop service either temporarily or finally any time for any reason with no warning or notice and with no liability.
The Licensor may deactivate, and release to the public, any accounts that are inactive for six (6) months or more.
Payments and Fees.
Licensor has the right to charge any fees for access to the Licensed Software or any site related services. Licensee is responsible for maintaining all hardware and software needed to access the Licensed Software and site related services and Licensee is responsible for payment of any fees for those services now and in the future. Licensee agrees to pay for any services Licensee signs up for, through the Licensed Software or through any site related services, upon invoice and Licensee agrees not to act in any way that could reasonably be considered fraudulent with respect to making payment. Licensee shall pay all applicable taxes for which Licensee may be liable due to licensee's location.
LICENSEE MUST BE 18 OR OLDER TO BE A DESK DANCER AFFILIATE. Eureka Marketing, Inc. may change affiliate programs at any time and may terminate any affiliate program for any reason. Licensee may not use any Desk Dancer affiliate in any way that violates any local, state, federal or international law, or the laws of any nation, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, or that may violate hacking, spam, identity theft, fraud, abuse, denial of service or other computer crime laws. Using the Licensed Software, or any site related service to post links, other than as allowed as a Desk Dancer affiliate, is absolutely prohibited. This license may be immediately terminated without notice if Licensee violates these restrictions.
Limitation of Liability
Licensor shall not be liable to Licensee or any third party for any incidental, indirect, exemplary, special or consequential damages, under any circumstances, including, but not limited to, damages for lost profits, revenue or savings, loss of goodwill, or the loss of data or the use of any data or hardware, even if Licensor had been advised of, knew, or should have known, of the possibility thereof. UNDER NO CIRCUMSTANCES SHALL LICENSOR'S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY LICENSEE UNDER THIS LICENSE AND AGREEMENT. Licensee acknowledges that the fees paid by him or her reflect the allocation of risk set forth in this license and agreement and that Licensor would not enter into this license and/or agreement without these limitations on its liability. The software authors, the Licensor, and its officers, directors, employees, contractors, agents and attorneys are not, nor will they ever be liable to Licensee for any claim or claims of any kind caused by the use of the Licensed Software or any site related services. Licensor will not be liable to Licensee for any claims of any kind based on any legal theory of any kind. Licensor is not liable to Licensee for direct damages of any kind in connection with any third party software used with the Licensed Software, any information or data accessed through the Licensed Software or access to or inability to access the Licensed Software, servers or site related services. Any information supplied by other licensee, users or the site related servers could be delayed, inaccurate, in error, or contain omissions for which Licensor will not have any liability.
Disclaimer of Warranties by Licensor.
The Licensed Software and site related services are provided "as is" without any express or implied warranty whatsoever, including but not limited to any warranty of a particular functionality or warranty to be free from viruses, worms, spy-ware or the like. Licensee recognizes that the "as is" clause of this license and agreement is an important part of the basis of this license and agreement, without which Licensor would not have agreed to enter this license and/or agreement. Licensor herein disclaims all warranties, express, implied, or statutory, regarding the Licensed Software, bundled third party software, and any site related services, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, title, and non-infringement. No representation or other affirmation of fact regarding the Licensed Software shall be deemed a warranty for any purpose or give rise to any liability whatsoever. Licensee acknowledges that he or she has relied on no warranties or statements other than as may be set forth herein. In no event will Licensor or the Licensed Software authors be held liable for any damages arising from the use of this software, bundled third party software, or any site related services. If the Licensed Software and/or site related services and/or any data collected from the Licensed Software or site related services, and/or bundled third party software prove to be defective, Licensee assumes the risk of any and all costs of any repairs to Licensee's computer systems and/or any injuries or problems of any kind. Licensee has been advised of the possibility of the Licensed Software and/or site related services causing damages or defects to Licensee's computer system(s) and Licensee agrees that neither the Licensor nor the Licensed Software authors may be held accountable for any damages or defects in any way for any reason. Licensor has the right to change its software, services or features in any way and at any time and to delete any data from its servers at any time for any reason.
Controlling Law.
This license and agreement shall be governed and construed by the laws of the United States (as applied by Federal courts sitting in the State of California) and of the State of California, notwithstanding any rules concerning conflicts of laws. The United Nations Convention on the International Sale of Goods shall not apply to this license and/or agreement.
Indemnification.
Licensee shall defend, indemnify and hold harmless Licensor, its officers, directors employees, contractors, agents, and attorneys from any and all claims or causes of action arising out of or in connection with licensee's use of the Licensed Software and site related services, including but not limited to licensee's breach of any term of this license and/or agreement and/or Licensee's violation of any local, state, federal or international law, or the laws of any nation, and shall pay any and all damages and expenses (including but not limited to reasonable attorneys' fees) incurred by Licensor and/or its officers, directors employees, contractors, agents, and attorneys. Licensor reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee shall cooperate with Licensor in asserting any available defenses.
No Waiver.
If Licensor fails to exercise any of its rights under this license and/or agreement for any reason whatsoever, any such failure to exercise such right shall not constitute waiver.
Severability.
If a State or Federal court of competent jurisdiction finds any part of this license and/or agreement unenforceable then the remainder of the license and/or agreement will continue intact and in full force and effect.
Termination.
This license and agreement is effective unless terminated by Licensor. Licensee may terminate this license at any time by deleting the software from licensee's computer system and all other storage media. This license automatically terminates if Licensee breaches any term of this license and/or agreement. In the event this license and/or agreement is terminated for any reason, all terms under the license and the agreement, except licensee's right to use the Licensed Software, survive such termination.
Legal Compliance.
Licensor may suspend or terminate this license immediately upon receipt of any notice which alleges that Licensee has used the Licensed Software and/or any site related services for any purpose that violates any local, state, federal or international law, or the laws of any nation, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, or that may violate hacking, spam, identity theft, fraud, abuse, denial of service or other computer related laws. In such event, Licensor may disclose licensee's identity and contact information, if requested by a governmental or law enforcement body, or as a result of a subpoena or other legal action, and Licensor shall not be liable for any resulting damages to Licensee. Licensee shall not bring any action or claim against Licensor for such disclosure.
PART 2: DESK DANCER USERS TERMS OF SERVICE
Terms of Service Rules:
In order to use the Desk Dancer service, Desk Dancer will grant you a User ID, Password and Account. You are solely responsible for maintaining the confidentiality of your User ID and Password. You may not share your logon and password with others so they can access your account. You are responsible and liable for all activities conducted through your User ID, Password and Account, even if this occurs without your permission.
You may not interfere with or disrupt the Desk Dancer servers or services in any manner whatsoever. Doing so may be a violation of Federal law.
You may not use Desk Dancer software, Desk Dancer site related services, or third party software bundled with Desk Dancer to transmit viruses or any other malicious programs. Doing so may be a violation of Federal law.
You may not share your Desk Dancer Premium login information with others. Please keep your login information private. Only one person can be logged on to the Desk Dancer network at a time. If more than one person tries to use the same login information at the same time you will both be disconnected from the Desk Dancer service. If you share your login information with others and this sharing causes you to be constantly disconnected from the Desk Dancer network Desk Dancer can't and won't reissue you new login information.
You may not use the Desk Dancer website or site related services, or third party software bundled with Desk Dancer to disparage or damage the reputation of Desk Dancer or Desk Dancer employees, contractors, agents, officers or directors.
You may not hack the Desk Dancer application, use software intended to modify the Eureka Networks application software in any way, circumvent Eureka Networks security measures, obtain any personally identifying information of other Desk Dancer users; and you shall not publish any such software or hack or make and such software, application or hack available for download or installation from any medium. Violation of this provision is cause for us to revoke your Desk Dancer account and we may pursue other remedies against you available to us by law.
Desk Dancer reserves the right to modify or change the Desk Dancer software and site related services without notice. Desk Dancer shall not be liable to you or any third party for changes in our software, site related services or bundled software.
You will not use our copyrights or Trademarks in whole or in part (including Desk Dancer, Eureka Networks, Desk Dancer icons, the Desk Dancer logo, or any copyrighted Desk Dancer graphics, text or other content) without our written permission.
The Desk Dancer Terms of Service may have been translated into other languages. In the event of any inconsistency, discrepancy or conflict between the English language version then in effect and the version in any other language, the English language version shall control and prevail.
Violation Of Terms And Liquidated Damages
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
You understand and agree that, because damages are often difficult to quantify, if it becomes necessary for Desk Dancer to pursue legal action to enforce these Terms, you will be liable to pay Desk Dancer the following amounts as liquidated damages, which you accept as reasonable estimates of Desk Dancers' damages for the specified breaches of these Terms:
If you use Desk Dancer trademarks (including Desk Dancer, Eureka Networks, Desk Dancer icons, the Desk Dancer logo, or any other copyrighted Desk Dancer graphics) without our permission you agree to pay Desk Dancer one thousand dollars ($1,000) for each instance of such unauthorized use, and $1,000 for each day of unauthorized use after being notified that your use is unauthorized.
If Desk Dancer terminates your access to use of the service you agree to no longer use our service. If you continue to use our service you agree to pay Desk Dancer $100 per day for each day you access Desk Dancer after your account is terminated.
Otherwise, you agree to pay Desk Dancer's actual damages, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of these Terms, Desk Dancer retains the right to seek the remedy of specific performance of any term contained in these Terms, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in these Terms, or any combination thereof.
These Terms of Service will be interpreted and governed by the laws of the State of California. You agree that any legal dispute involving Desk Dancer software and/or site related services must take place in State or Federal courts in Los Angeles County, California. You agree to waive any objection to personal jurisdiction, and agree that venue shall be in Los Angeles County, California. Desk Dancer's liability to you for any cause whatsoever, no matter the form of the action, will at all times be limited to the amount paid, if any, by you to Desk Dancer for products and services during your membership.
These Terms of Service, along with any applicable Desk Dancer software license and agreement, constitute the entire agreement between the parties and supersede any prior written or oral understanding or agreements.
Please report any violations of these Terms of Service by visiting our contact page which can be accessed at http://www.DeskDancer.com. We hope you will enjoy using the Desk Dancer software and site related services.
18 U.S.C. Section 2257 Compliance Notice
All models, actors, actresses and other persons that appear in any visual depiction of actual sexually explicit conduct appearing or otherwise contained in the product were over the age of eighteen years at the time of the creation of such depictions. Some visual depictions displayed in the product are exempt from the provision of 18 U.S.C. section 2257 and 28 C.F.R. 75 because said visual depictions do not consist of depictions of conduct as specifically listed in 18 U.S.C section 2256 (2) (A) through (D), but are merely depictions of non-sexually explicit nudity, or are depictions of simulated sexual conduct. The owners and operators of the product are the primary producer (as that term is defined in 18 USC section 2257) of most of the visual content contained in the product. Please direct questions pertaining to content of the product to: Eureka Networks, Inc. 19360 Rinaldi St. Northridge CA 91326
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