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Terms and Conditions

This Agreement (the "Agreement") is a legal agreement between DeskPort Technologies, Inc. ("DeskPort Technologies"), which owns the MileTracker computer software application and any associated media and related printed or electronic materials (collectively, "MileTracker") and the individual person who licenses MileTracker from DeskPort Technologies. MileTracker was developed by DeskPort Technologies for users of the USATODAY.com website, which is owned and operated by USATODAY.com, a division of Gannett Satellite Information Network, Inc. ("USATODAY.com") as a product designed to retrieve certain information from various Internet web sites, making your access to that information faster and easier than access via existing browsers. Access to and use of MileTracker is provided to you subject to the terms and conditions of this Agreement.

You may not access or use MileTracker unless you are at least 18 years old. Over time, DeskPort Technologies may make changes to the terms and conditions of this Agreement. If changes are made, DeskPort Technologies will notify you of the changes by posting them prominently on the Download Website (as defined herein) or sending them to you by e-mail. If you do not want to agree to a change that DeskPort Technologies makes, please discontinue your use of MileTracker at that time. If you continue to use MileTracker after DeskPort Technologies has notified you of a change, you agree to be bound by that change.

 

IMPORTANT - PLEASE READ CAREFULLY

 

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND DESKPORT TECHNOLOGIES FOR YOUR USE OF MILETRACKER. BY CHECKING THE "I ACCEPT" BOX ON THE REGISTRATION PAGE OF THE WEBSITE FROM WHICH YOU DOWNLOADED THE MILETRACKER SOFTWARE AND MATERIALS (THE "DOWNLOAD WEBSITE"), YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THE FOLLOWING TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT CHECK THE BOX ON THE REGISTRATION PAGE INDICATING THAT YOU HAVE READ AND ACCEPTED THE TERMS OF THIS AGREEMENT, DESKPORT TECHNOLOGIES IS UNWILLING TO GRANT YOU THIS LICENSE, IN WHICH CASE YOU MUST DELETE ALL OF THE MILETRACKER FILES THAT WERE DOWNLOADED FROM THE DOWNLOAD WEBSITE.

RIGHTS GRANTED. Subject to the terms and conditions of this Agreement, DeskPort Technologies grants to you a nonexclusive, nontransferable license (without the right to sublicense) permitting you to download, install and use MileTracker solely for your personal use. The rights granted to you by DeskPort Technologies shall not be assigned, sublicensed or otherwise conveyed or transferred by you to any other person, organization or entity. Any rights not expressly granted to you herein by DeskPort Technologies are reserved. You may not modify, sell, rent, transfer, resell for profit, distribute or create derivative works based upon MileTracker or any part thereof.

OWNERSHIP. The foregoing license gives you limited rights to use MileTracker. You do not become the owner of MileTracker. DeskPort Technologies and its partners and/or suppliers, as applicable, retain all rights and title to MileTracker and all copies thereof. All rights not specifically granted in this Agreement, including Federal and International Copyrights, are reserved by DeskPort Technologies. You acknowledge and agree that DeskPort Technologies and its partners and/or suppliers, as applicable, hold all rights to all patents, copyrights and trade secrets pertaining to, and that this Agreement conveys to you only a limited right to access and use, MileTracker.

ACCEPTANCE AND UNDERSTANDING OF PRIVACY POLICIES. By checking the appropriate box on the registration page of the Download Website to indicate your acceptance of these terms of use, you agree that the information you provide when you register will be collected by and used by DeskPort Technologies and DeskPort Technologies’ vendors to provide you with MileTracker and information about MileTracker to the extent it is permitted to do so by DeskPort’s MileTracker privacy policy located at http://www.usatoday.deskport.biz/privacy.php (the "DeskPort MileTracker Privacy Policy"). You also acknowledge and agree that USATODAY.com may collect and store the information that you provide when you register, and may use and share this information to provide you with MileTracker, information about MileTracker and related products and services and as it otherwise sees fit, in its sole discretion to the extent it is permitted to do so by the USATODAY.com privacy policy located at http://privacy.usatoday.com (the "USATODAY.com Privacy Policy") and applicable laws. You acknowledge and agree that you have reviewed and understand the terms and provisions of the USATODAY.com Privacy Policy and DeskPort MileTracker Privacy Policy. Your use of MileTracker is expressly conditioned upon such acknowledgment and agreement.

ACCURACY OF INFORMATION. All of the information and/or data retrieved by MileTracker is provided on an "as is" basis. While the information is believed to be accurate, nothing retrieved by MileTracker should be the sole basis for making any decisions. MileTracker is a facilitator or reporter (and not an original source) of content supplied by third parties. None of the information retrieved by this application is guaranteed to be accurate, complete, useful or timely. While every effort is made to access information of the highest integrity, DeskPort Technologies and USATODAY.com do not warrant or guarantee accuracy, completeness, usefulness or timeliness of information. You further agree and understand that, while unlikely, MileTracker may cease to be usable at any time. Updates and continued maintenance to this application are not guaranteed.

COMMUNICATIONS AND UPGRADES. You acknowledge and agree that DeskPort Technologies, USATODAY.com and/or their parents and affiliates may, from time to time as such entity deems appropriate, provide to you, via e-mail or other communications means, information that is pertinent to MileTracker. Such communications may be delivered directly to your computer in graphical or text form; for example, dialog boxes to inform users of a new feature or "alert icons" to suggest a product of potential interest. In addition, MileTracker regularly communicates with DeskPort Technologies’ company servers to facilitate application upgrades as they are available. MileTracker is specifically designed to be upgraded "on-the-fly" such that bug fixes, new features, registry settings, and other modifications can be propagated to MileTracker from DeskPort Technologies’ servers. Therefore, you should expect to see features modified, added or removed from time-to-time. Some of these changes and improvements may be delivered as a result of notification to you; other changes may be delivered without any explicit notification. You acknowledge and agree that DeskPort Technologies and USATODAY.com do not provide any maintenance or support services with respect to MileTracker unless expressly stated on the Download Website.

REGISTRATION. To download a copy of MileTracker, you must register by completing the form on the Download Website. You agree (a) to provide true, accurate, current and complete information about yourself as prompted by the MileTracker registration form, and (b) to maintain and promptly update the information you provide to keep it true, accurate, current and complete. If DeskPort Technologies or USATODAY.com has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, DeskPort Technologies and USATODAY.com have the right to terminate this Agreement and/or refuse any and all current or future use by you of MileTracker (or any portion thereof).

DISCLAIMER OF WARRANTIES. MILETRACKER AND ALL DOCUMENTS AND/OR DATA DERIVED FROM OR DELIVERED BY MILETRACKER ARE PROVIDED TO YOU ON AN "AS IS" BASIS, WITHOUT ANY WARRANTY OF ANY KIND , EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DESKPORT TECHNOLOGIES AND USATODAY.COM ARE PROVIDING MILETRACKER (INCLUDING ANY RELATED SOFTWARE, DOCUMENTATION AND DATA DERIVED OR DELIVERED BY THE PRODUCTS AND SERVICES) WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF THE TRADE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF MILETRACKER -- INCLUDING RESPONSIBILITY FOR ANY DAMAGES CAUSED BY ERRORS, INACCURACIES OR OMISSIONS, COMMUNICATIONS LINE INTERRUPTION OR FAILURE, UNAUTHORIZED ACCESS, THEFT, SYSTEMS FAILURE AND OTHER OCCURRENCES -- IS BORNE BY YOU. YOU ACKNOWLEDGE AND AGREE THAT DESKPORT TECHNOLOGIES, USATODAY.COM AND THEIR PARENTS AND AFFILIATES SHALL IN NOT IN ANY WAY BE RESPONSIBLE FOR ANY DAMAGES CAUSED TO YOU OR YOUR COMPUTER HARDWARE, SOFTWARE, DATA, MODEM, PHONE LINE, OR OTHER PROPERTY OR SYSTEM OR TO ANY DATA THEREON ARISING FROM THE DOWNLOAD AND/OR USE OF MILETRACKER. THE WARRANTY, EXCLUSIVE REMEDIES AND LIMITED LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DESKPORT TECHNOLOGIES, USATODAY.COM AND YOU. YOU AGREE THAT DESKPORT TECHNOLOGIES AND USATODAY.COM WOULD NOT BE ABLE TO PROVIDE MILETRACKER TO YOU WITHOUT SUCH LIMITATIONS.

CONTENT DISCLAIMER. DESKPORT TECHNOLOGIES, USATODAY.COM AND THEIR PARENTS AND AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF MILETRACKER OR MATERIALS IN OR OBTAINED THROUGH MILETRACKER IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE. YOU ACKNOWLEDGE AND AGREE THAT DESKPORT TECHNOLOGIES, USATODAY.COM AND THEIR PARENTS AND AFFILIATES SHALL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY REGARDING ANY CONTENT THAT IS PROVIDED IN CONNECTION WITH MILETRACKER. Because of the inherent hazards and uncertainties of electronic distribution, there may be delays, omissions or inaccuracies in the materials or information available through MileTracker. DeskPort Technologies, USATODAY.com and their parents and affiliates do not warrant that MileTracker or any of its functions will be uninterrupted or error-free, that defects will be corrected, or that any part MileTracker or the materials that may be downloaded from MileTracker are free of viruses or other harmful components. If you download any materials using or obtained by MileTracker, you do so at your own risk.

LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DESKPORT TECHNOLOGIES, USATODAY.COM AND THEIR PARENTS AND AFFILIATES WILL NOT BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS, INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, WHETHER BASED ON BREACH OF CONTRACT, PRODUCTS AND SERVICES LIABILITY OR OTHERWISE, EVEN IF DESKPORT TECHNOLOGIES, USATODAY.COM OR THEIR REPRESENTATIVES HAVE ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR YOUR USE OF MILETRACKER. YOU AGREE THAT THE LIABILITY OF DESKPORT TECHNOLOGIES, USATODAY.COM AND THEIR PARENT AND AFFILIATED COMPANIES, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM IN ANY WAY CONNECTED TO MILETRACKER SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT YOU PAID FOR YOUR USE OF MILETRACKER OR (II) $50.

INDEMNIFICATION. You agree to indemnify, defend, and hold DeskPort Technologies, USATODAY.com and their respective parents, affiliates, successors and assigns and all of their respective officers, directors, employees, licensors, agents, representatives and other suppliers (each an "Indemnitee") harmless from and against any and all damages, liabilities, costs, and expenses (including, without limitation, attorney’s fees and expert witness fees) suffered or incurred by any Indemnitee arising from or relating to any third party claims, demands, suits, or other legal actions resulting from or in connection with: (i) your breach of any of your obligations under this Agreement; or (ii) your use or inability to use MileTracker.

COPYRIGHT NOTICE. Except where otherwise indicated, the MileTracker software, documentation and related materials are Copyright ©2004 by DeskPort Technologies, LLC, Indianapolis, Indiana. All rights reserved. You are not permitted, nor can you allow any third party, to remove any proprietary notices, labels or trademarks on the MileTracker software, documentation or related materials.

TRADEMARKS. MileTracker™ is a trademark of DeskPort Technologies, LLC and USA TODAY® is a trademark of USA TODAY and its affiliated companies. Other product and company names mentioned herein may be the trademarks of their respective owners. You are not permitted, nor can you allow any third party, to use DeskPort Technologies’, USA TODAY’s or their affiliates’ names, logos, or trademarks in any manner including, without limitation, in advertising or marketing materials.

TERM AND TERMINATION. This Agreement shall commence upon your agreement to the terms and conditions of this Agreement (as evidenced by your checking the appropriate box on the registration page of the Download Website), and shall continue until the earlier occurrence of any of the termination conditions set forth herein. You may terminate this Agreement at any time by destroying all copies of the MileTracker software, documentation and related materials downloaded by you. This Agreement automatically terminates if you breach any of the terms and conditions of this Agreement. You agree that, upon any such termination, you will destroy (and permanently erase) all copies of the MileTracker software, documentation and related materials downloaded by you and any permitted copies, and cease all use of MileTracker. All provisions which by their terms contemplate continuing effectiveness, including without limitation the provisions dealing with Disclaimer of Warranties, Content Disclaimer, Limitation of Damages and Indemnification, shall survive termination of this Agreement.

GENERAL. This Agreement is governed by the laws of the State of Indiana, U.S.A. You consent to the exclusive jurisdiction and venue of courts in Marion County, Indiana, should any dispute arise out of or relate to this Agreement or the use of MileTracker. Use of MileTracker is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph.

SEVERABILITY. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.

ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between you and DeskPort Technologies with respect to MileTracker, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and DeskPort Technologies with respect to MileTracker.

MODIFICATION OF THESE TERMS AND CONDITIONS. DeskPort Technologies, LLC reserves the right to modify the Agreement at any time by revising the terms and conditions herein, including, but not limited to, adding fees and/or charges for use. It is your responsibility to regularly review these terms and conditions. Such changes, modifications, additions or deletions shall be effective immediately upon posting on the DeskPort Technnologies web site at http://usatoday.DeskPort.biz/terms_conditions.html, or by electronic or conventional mail. Continued use of MileTracker following any such changes shall constitute your acceptance of such changes.

NO WAIVER. No waiver of any of DeskPort Technologies’ or USATODAY.com’s rights under this Agreement will be effective unless in a writing signed by the party making such waiver, and such waiver is only effective for the specific instance referenced in such writing.

COMPLIANCE WITH LAWS. You agree to comply with all applicable rules, regulations, ordinances, and laws pertaining to your use MileTracker, including, without limitation, U.S. export laws.

NO ASSIGNMENT. This Agreement shall not be assignable, sublicensable or delegable by you except with DeskPort Technologies’ prior written consent. Any such purported assignment, sublicense or delegation without such consent shall be void.

COMPLAINTS. Any complaints regarding MileTracker may be sent to DeskPort Technologies by electronic webmaster@deskport.biz.

THIRD PARTY BENEFICIARIES. USATODAY.com and its parent and affiliated companies and subsidiaries shall be deemed third party beneficiaries of this Agreement. Except as otherwise provided herein, this Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party.