Thank you for downloading and using MacUpdate Desktop (“Software”). This End User License Agreement (“Agreement”) is by and between you, the user (“User,” “You,” and “Your”), and MacUpdate LLC (“MacUpdate”), a limited liability company organized under the laws of the State of Michigan. MacUpdate provides You with a limited license to use the Software. Your use of the Software is subject to the terms and conditions of this Agreement and, if You do not agree to the terms and conditions of this Agreement, you must discontinue Your use of the Software and uninstall the Software from Your computer.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE CONSTITUTES YOUR CONSENT TO THE TRANSMISSION OF INFORMATION COLLECTED BY THE SOFTWARE TO AND FROM SERVERS OWNED BY, OPERATED BY, OR UNDER THE CONTROL OF MACUPDATE. BY USING THE SOFTWARE, YOU EXPRESSLY CONSENT TO THE TRANSMISSION OF THIS INFORMATION. MACUPDATE MAY CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME. IN THE EVENT MACUPDATE CHANGES THE TERMS OF THIS AGREEMENT, THE EFFECTIVE DATE ABOVE WILL CHANGE. YOUR CONTINUED USE OF THE SOFTWARE AFTER A CHANGE IN THE EFFECTIVE DATE CONSTITUTES YOUR MANIFESTATION OF ASSENT TO AND AGREEMENT WITH ANY AND ALL CHANGES TO THIS AGREEMENT.
- Warranties. You warrant and agree that You have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. You warrant that you are a human individual that is eighteen (18) years of age or older and that You are not a bot, script, or other computer or machine. You warrant that You are not prohibited from assenting to this Agreement by any preexisting Agreement. If You are using the Website on behalf of a third party, including but not limited to a business entity, You warrant that You are the authorized representative of that third party and have the authority to bind that third party to the terms of this Agreement.
- User Account. MacUpdate may provide You with the ability to register a user account (“User Account”), which will provide access to the Software. Your User Account is protected by a username and password. You recognize that You are solely responsible for maintaining the security and confidentiality of Your username and password and that You are responsible for any unauthorized access to Your User Account. In the event Your User Account is accessed without Your authorization, You agree to notify MacUpdate immediately. MacUpdate reserves the right to restrict access to, suspend, disable, or delete Your User Account at any time, in its sole discretion, and without prior warning.
- Limited License. MacUpdate grants You a limited, non-exclusive, personal, non-transferrable, and revocable license to install and use one copy of the Software in executable code form on up to three (3) personal computers for its customary and intended purposes and subject to the terms of this Agreement. In the event You require additional Software licenses, You must contact MacUpdate for those additional licenses. You understand and agree that MacUpdate reserves the right to terminate this Agreement and its associated license at any time, without prior notice, and within its sole and absolute discretion. Additionally, this limited license will terminate upon Your violation of any term of this Agreement or Your violation of any local, state, national, or international law or regulation.
As a condition precedent to the license granted under the terms of this Agreement, You understand and agree that You are expressly prohibited from:
Distributing, emulating, cloning, publishing, displaying, selling, assigning, sublicensing, renting, leasing, loaning, modifying, publicly displaying, publicly performing, creating derivative works of, translating, or adapting the Software; Decompiling, reverse engineering, disassembling, or hacking the Software; Circumventing the Software’s technology protection measures; Infringing upon the intellectual property or other proprietary rights of MacUpdate; Exporting the Software in violation of the export controls and regulations of the laws of the United States or any other applicable country’s laws or regulations; Using the Software to violate any applicable law, statute, regulation, ordinance, or treaty, whether national or international; Using the Software to violate the rights of third parties, including, but not limited to, personal or proprietary rights; Removing or altering any proprietary notices contained within the Software, including, but not limited to, copyright and trademark notices; and Distributing, copying, emulating, cloning, selling, modifying, decompiling, disassembling, or otherwise reverse engineering the Software.
You understand and agree that You are prohibited from using the Software in any way inconsistent with or in violation of this Agreement or any local, state, national, or international laws or regulations.
- Error Reporting and Feedback. In the event You provide feedback or suggestions to MacUpdate on any performance issues, bugs, defects, errors, omissions, improvements, test results, or any other performance or operational issues that relate to or arise out of Your use of the Software, You understand and agree this feedback or suggestions, including any intellectual property or other proprietary information contained within, will become the exclusive property of MacUpdate and You agree to assign all right and title in or to any and all feedback or suggestions that You submit to MacUpdate. You further agree to execute any and all documents necessary to assign Your rights to any and all feedback or suggestions submitted to MacUpdate upon MacUpdate’s request, including, but not limited to, any documents necessary to perfect MacUpdate’s rights in and to intellectual property rights.
- Proprietary Rights. You understand and agree that the Software, including, but not limited to, its source code, selection and arrangement, executable code, structure, and organization contains the valuable trade secrets and intellectual property of MacUpdate. Under the terms of this Agreement, You do not acquire any ownership rights in or to the Software. You acquire only a limited license to use the Software subject to the terms of this Agreement. All other rights are reserved by MacUpdate.
- Backup Copies. You may make copies of the Software for archival or backup purposes provided that said copies will include in readable format any and all proprietary and copyright notices or markings contained within the original.
- Privacy. During Your use of the Software, You understand and agree that MacUpdate may collect personal or personally identifiable information from You, including, but not limited to, the following information:
- Email address;
- Screen name;
- First name and surname;
- Phone number or fax number;
- Address, city, state, and zip code;
- Information needed to complete a payment;
- Website URL;
- Profile photo; and
- Installed applications and their associated unique IDs.
MacUpdate may use this information to provide You with the Software or its associated services, to register Your User Account, to communicate with You about Your orders, to transmit this information to a third party to aid You in completing a transaction, to tailor the Software and its offerings to Your preferences, to change the content of the Software, and to update You on MacUpdate’s services and the services of third party advertisers that advertise through the Software.
MacUpdate works to protect the security of Your personal and personally identifiable information and has implemented industry standard encryption to protect against unauthorized access to or interception of Your personal and personally identifiable information. You are responsible for the security of Your User Account and have an ongoing duty to guard against unauthorized access. In the event You discover unauthorized access to Your User Account, You must immediately inform MacUpdate of the details of the unauthorized access.
MacUpdate collects and processes Your personal and personally identifiable information on servers located within the United States and, through Your use of the Software, You hereby expressly agree to the processing of Your personal and personally identifiable information within the United States.
MacUpdate does not sell Your personal or personally identifiable information to third parties. MacUpdate may, however, share Your personal or personally identifiable information with third parties to provide You with advertisements for goods or services through the Software and to help You complete a transaction. MacUpdate may transfer Your personal or personally identifiable information to share information with its parents or subsidiaries or to a third party in a sale of the Software or MacUpdate. MacUpdate may also transfer Your personal or personally identifiable information to respond to a duly authorized subpoena or court order, to respond to regulatory requests by government authorities, to protect the safety or security of MacUpdate, the Software, its employees, and its users, and, where necessary, to protect against fraud, false advertising, or the violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international.
California residents may obtain, once a year and without charge, a list of Your personal information that MacUpdate has disclosed to third parties for marketing purposes within the previous calendar year. This includes a list of all personal information disclosed to third parties, as well as the names and addresses of the third parties that received Your personal information. If You are a California resident and would like to make a request for disclosure under this section, please contact MacUpdate in writing.
- Term. This Agreement, and the license granted herein, will remain in effect until terminated. You may terminate this Agreement and the license granted herein at any time by discontinuing Your use of the Software and destroying or deleting all copies of the Software from Your computer. Upon Your termination of this Agreement, all restrictions and limitations imposed on You under the terms of this Agreement, including all limitations on liability and disclaimers of warranties, will survive termination of this Agreement.
- Termination. Any license granted under the terms of this Agreement will remain in effect for its full term unless terminated earlier by one of the following actions:
- Your breach of any term or condition of this Agreement;
- Your failure to pay any monies owed MacUpdate for any license granted under this Agreement or otherwise;
- If either Party to this Agreement is adjudicated as bankrupt under the U.S. Bankruptcy Code, as now constituted or later amended, or under any other applicable federal or state bankruptcy law or other similar law, or an assignment of a receiver, liquidator, assignee, trustee, custodian (or similar official) of either Party to this Agreement or any substantial part of their properties, or on the winding up of or liquidation of the affairs of either of the Parties to this Agreement, the other Party will be entitled at its own discretion to terminate any license granted under this Agreement forthwith by written notification to the Party concerned; and
- Upon either Party’s violation of any applicable law, statute, regulation, ordinance, or treaty, whether national or international.
- Assignment. The rights granted in this Agreement are restricted for use solely by You and may not be assigned, transferred, or sublicensed. MacUpdate may assign its rights and duties under this Agreement at any time, including, but not limited to, in a sale of the assets of MacUpdate or in a sale of the company itself.
- Suitability. You alone are responsible for determining which software best suits Your needs, for installing and operating the Software, and for the results obtained. Consequently, You should determine Your needs and fully evaluate the Software’s capabilities before using the Software.
- Limited Warranty. MACUPDATE PROVIDES THE SOFTWARE ON AN AS-IS BASIS AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. ANY STATEMENTS OR REPRESENTATIONS MADE ABOUT THE SOFTWARE IN MARKETING MATERIALS OR IN ANY COMMUNICATION WITH YOU ARE FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE A WARRANTY OR REPRESENTATION TO BE RELIED UPON. WITHOUT LIMITING THE FOREGOING DISCLAIMER OF WARRANTIES, MACUPDATE EXPRESSLY DOES NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE ERROR FREE, UNINTERRUPTED, COMPLETE, RELIABLE, ACCURATE, OR SECURE. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, THIS EXCLUSION MAY NOT APPLY.
- Limitation of Liability. MACUPDATE WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY FOR ANY DAMAGES, CLAIMS INJURIES, JUDGMENTS, COSTS, OR LIABILITIES ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES. YOU UNDERSTAND AND AGREE THAT THE MAXIMUM AMOUNT THAT MACUPDATE CAN BE HELD LIABLE TO YOU UNDER ANY CIRCUMSTANCE IS THE AMOUNT THAT YOU PAID TO LICENSE THE SOFTWARE. IF NO AMOUNT IS PAID BY YOU TO MACUPDATE, YOU AGREE THAT YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.
SOME STATES OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES. IF YOUR STATE OR PROVINCE DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, YOU SHOULD SEEK LEGAL COUNSEL TO UNDERSTAND YOUR RIGHTS UNDER THE LAW.
- Indemnification. You agree to hold harmless, indemnify, and defend MacUpdate, its officers, employees, agents, successors, and assigns, from and against any and all claims, demands, losses, damages, rights, and actions of any kind, including, but not limited to, property damage, infringement, personal injury, and death, that either directly or indirectly arise out of or are related to Your use of the Software, Your violation of any term or condition of this Agreement, Your use of the Software to violate any applicable law, statute, regulation, ordinance, or treaty, whether national or international, or Your use of the Software to violate the rights of third parties. Your obligation to defend MacUpdate under the terms of this Agreement will not provide You with the ability to control MacUpdate’s defense. MacUpdate reserves the right to control its defense, including, but not limited to, its choice of counsel and the choice to settle or litigate a claim.
- Governing Law and Choice of Forum. This Agreement will be governed by and interpreted in accordance with the laws of the State of Michigan and the federal law of the United States of America, without regard to the conflicts of laws rules thereof.
YOU AND MACUPDATE AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR CONCERNING THE VALIDITY, INTERPRETATION, BREACH, VIOLATION, OR TERMINATION OF THIS AGREEMENT. THIS ARBITRATION WILL BE HELD IN TRAVERSE CITY, MICHIGAN AND WILL BE HELD IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATOR WILL DECIDE THE CLAIM ON THE BASIS OF THE LEGAL PRINCIPLES AND LAWS OF THE STATE OF MICHIGAN AND WILL HAVE THE DISCRETION TO AWARD ALL COSTS AND ATTORNEYS’ FEES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND MACUPDATE AGREE THAT THE DETERMINATION OR AWARD OF THIS ARBITRATOR MAY BE ENTERED AS A JUDGEMENT IN ANY COURT SITTING WITHIN THE STATE OF MICHIGAN THAT HAS JURISDICTION OVER THE SUBJECT MATTER OF THE DISPUTE. YOU AND MACUPDATE AGREE THAT THE PARTIES WILL BE REQUIRED TO BE PRESENT WITHIN THE STATE OF MICHIGAN IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND MACUPDATE HEREBY AGREE TO SUBMIT TO THE EXCLUSIVE PERSONAL AND SUBJECT MATTER JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.
- Notices. Unless otherwise specified in this Agreement, any notices required or permitted to be given to MacUpdate pursuant to this Agreement will be in writing and will be deemed to have been given when received at:
MacUpdate, LLC 526 W. 14th St. 100 Traverse City, MI 49684
- Force Majeure. MacUpdate will not responsible for any delay or failure in performance of the Software arising out of any cause beyond MacUpdate’s control, such as acts of God, war, riots, fire, terrorist attacks, power outages, severe weather, or other accidents.
- Severability. If any provision of this Agreement or the application thereof to any person or circumstance is found to be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and the application thereof will not be affected and will be enforceable to the fullest extent permitted by law.
- Waiver and Integration. No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is in writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.
- Interpretation. This Agreement will be deemed to have been drafted by both parties and the terms and conditions of this Agreement will not be interpreted against its drafter.
- Survivability. The representations, warranties, duties, and covenants made by You under this Agreement will survive the termination of this Agreement and Your use of the Software including, but not limited to, Your duty to indemnify and defend MacUpdate.
- Compliance with Export Laws. You will be responsible for complying with all applicable government regulations of the United States or any foreign countries with respect to the use, importation, and exportation of the Software. MacUpdate makes no recommendations and provides no advice regarding Your exportation of the Software.