ClearOS Server Marketplace Terms

----- Effective as of Jun 15, 2011 -----

1.Introduction

1.1 The ClearCenter Marketplace (“Marketplace”) is owned and operated by ClearCenter Corp (“ClearCenter”). In addition, your use of the ClearCenter Marketplace is subject to the ClearOS EULA provided by the ClearFoundation (found at http://www.clearfoundation.com/Software/licensing-information.html). The ClearCenter Marketplace Terms of Service shall take precedence in that order in the event of a conflict between them, to the extent of such conflict. Your use of ClearCenter Marketplace is governed by a legal agreement between you and the ClearCenter Marketplace Terms of Service (together called the “Terms”).

1.2 You may use the ClearCenter Marketplace to browse, locate, and download Products for your ClearOS installation. Some of these Products may be offered by ClearCenter while others may be made available by third-parties (such as but not limited to ClearFoundation) not affiliated with ClearCenter. You agree that ClearCenter is not responsible for any Product on the Marketplace that originates from a source other than ClearCenter. Additionally, some Products may be made available to you at no charge while other Products may be purchased for a fee. You agree that you are solely responsible for all fees associated with purchases you make on in the Marketplace. Further you understand that third-party Product offerings may have their own End User License Agreement ("EULA") and you further agree to find and agree to said individual third-party EULA.

1.3 You accept the Terms by either (1) clicking to agree or accept where these options are presented to you, or (2) actually using the ClearCenter Marketplace application or web service connected to a ClearOS installation.

1.4 In order to use the Marketplace you must be 13 years of age or older. If you are between 13 and 18 years of age, you must have your parent or legal guardian’s permission to use the Marketplace. On using the service you warrant that you have legal capacity to enter into the agreement.

2.ClearCenter’s Provision of ClearCenter Marketplace

2.1 You agree that ClearCenter may stop (permanently or temporarily) providing the Marketplace (or any features within the Marketplace) to you or to users generally at ClearCenter’s sole discretion, without prior notice to you.

2.2 You agree that if ClearCenter disables access to your account, you may be prevented from accessing the Marketplace, your account details or any files or other Products that are stored with your account.

2.3 ClearCenter may make available to you various payment processing methods to facilitate the purchase of Products from the Marketplace. You agree to abide by any relevant Terms of Service or other legal agreement, whether with ClearCenter or a third party, that governs your use of a given payment processing method. You agree that ClearCenter reserves the right to add or remove payment processing methods at its sole discretion and without notice to you.

2.4 From time to time, ClearCenter may discover a Product in the Marketplace that violates the ClearCenter Marketplace Developer Distribution Agreement or other legal agreements, laws, regulations or policies. You agree that in such an instance ClearCenter retains the right to remotely remove those applications from your Appliance at its sole discretion and without notice to you.

3.Your Use of the ClearCenter Marketplace

3.1 In order to access certain services in the Marketplace, you may be required to provide information about yourself such as your name, address, and billing details. You agree that any such information you provide to ClearCenter will always be accurate, correct and up to date.

3.2 You agree to use the Marketplace only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You agree to comply with all local laws and regulations regarding the download, installation and/or use of the Products.

3.3 You agree not to access (or attempt to access) the Marketplace by any means other than through the ClearOS Community interface that has been provided by ClearFoundation or the ClearOS Professional interface that has been provided by ClearCenter, unless you have been specifically allowed to do so in a separate agreement with ClearCenter. You specifically agree not to access (or attempt to access) the Marketplace through any automated means (including use of scripts, crawlers or similar technologies from time to time).

3.4 You agree that you will not engage in any activity that interferes with or disrupts the Marketplace (or the servers and networks which are connected to the Marketplace). You agree that you will not use any of the Products found on the Marketplace in a way that interferes or disrupts any servers, networks, or websites operated by ClearCenter, or any third-party such as but not limited to ClearFoundation.

3.5 Unless you have been specifically permitted to do so in a separate agreement with ClearCenter, you agree that you will not reproduce, duplicate, copy, sell, trade or resell ClearOS Professional connected or not connected to the Marketplace for any purpose.

3.6 You agree that you are solely responsible for (and that ClearCenter has no responsibility to you or to any third party for) your use of the Marketplace or any Products, any breach of your obligations under the Terms, and for the consequences (including loss or damage of any kind which ClearCenter may suffer) of any such breach.

3.7 You agree to comply with any and all applicable tax laws, including the reporting and payment of any taxes arising in connection with your use of the Marketplace or the purchase of Products through the Marketplace, and that the reporting and payment of any such applicable taxes are your responsibility.

3.8 You agree that ClearCenter and/or third parties own all right, title and interest in and to the Marketplace and the Products available through the Marketplace, including without limitation all applicable Intellectual Property Rights in the Products. "Intellectual Property Rights" means any and all intellectual property rights wherever in the world and whenever arising (and including any application), including patent laws, copyright, trade secrets, know-how, confidential information, business names and domain names, computer programs, trademark laws, service marks, trade names, utility models, design rights, semi-conductor topography rights, database rights, goodwill or rights to sue for passing off, and any and all other proprietary rights worldwide. You agree that you will not, and will not allow any third party to, (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Products, unless otherwise permitted, (ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management or forward-lock functionality) in the Products, (iii) use the Products to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or (iv) remove, obscure, or alter ClearCenter's or any third party's copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Products.

3.9 ClearCenter reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Products from the Marketplace.

4.ClearCenter Services and Third Party Products and Services

4.1 Some components of Products (whether developed by ClearCenter or third parties) may also be governed by applicable open source software licenses. In the event of a conflict between the Terms and any such licenses, the open source software licenses shall prevail with respect to those components.

5.Automatic Updates

5.1 ClearOS Community or ClearOS Professional may communicate with ClearCenter servers from time to time to check for available updates to the Products, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, "Updates"). By installing these Products, you agree to such automatically requested and received Updates.

6.Export Restrictions

6.1 Products available on the Marketplace may be subject to laws, administrative regulations and executive orders of those authorities responsible according to any applicable laws relating to the control of imports and exports of the Products (“Export Laws”). You agree to comply with all applicable Export Laws and you shall not export or re-export directly or indirectly (including via remote access) any part of the Products to any country to which a license is required under the Export Laws without first obtaining a license.

7.Indemnification

7.1 To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless ClearCenter, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from your use of the Marketplace, including your downloading, installation, or use of any Products, or your violation of these Terms.

8.Termination

8.1 These Terms will continue to apply until terminated by either you or ClearCenter as set out below.

8.2 If you want to terminate these Terms, you may do so by ceasing your use of the Marketplace and any Products downloaded from the Marketplace.

8.3 ClearCenter may at any time, terminate these Terms with you if: (A) you have breached any provision of these Terms; or (B) ClearCenter is required to do so by law; or (C) ClearCenter decides to no longer provide the Marketplace.

8.4 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and ClearCenter have benefited from, been subject to (or which have accrued over time whilst these Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 11.6 shall continue to apply to such rights, obligations and liabilities indefinitely.

9.DISCLAIMER OF WARRANTIES

9.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE MARKETPLACE AND ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MARKETPLACE IS AT YOUR SOLE RISK AND THAT THE MARKETPLACE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9.2 YOUR USE OF THE MARKETPLACE AND ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MARKETPLACE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, SERVER APPLIANCE, OR OTHER APPLIANCE, OR LOSS OF DATA THAT RESULTS FROM SUCH USE.

9.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLEARCENTER FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES TERMS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANYIMPLIED WARRANTIES TERMS AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE MARKETPLACE AS WELL AS THE MARKETPLACE ITSELF.

9.4 NONE OF THE PRODUCTS ARE INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

10.LIMITATION OF LIABILITY

10.1 SUBJECT ALWAYS TO CLAUSE 10.2, YOU EXPRESSLY UNDERSTAND AND AGREE THAT CLEARCENTER AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU THROUGH YOUR USE OF THE MARKETPLACE OR ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED FROM THE MARKETPLACE, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT CLEARCENTER OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

10.2 NOTHING IN THE TERMS EXCLUDES THE LIABILITY FO CLEARCENTER, ITS SUBSIDIARIES OR AFFILIATES FOR: (I) DEATH AND PERSONAL INJURY CAUSED BY NEGLIGENCE; (II) FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED BY APPLICABLE LAW.

11.General Legal Terms

11.1 These Terms constitutes the whole legal agreement between you and ClearCenter and govern your use of the Marketplace and the Products , and completely replace any prior agreements between you and ClearCenter in relation to the use of ClearOS and/or the Marketplace and the Products. Each party confirms that, in entering into the Terms it has not relied upon any representations or statements not expressly incorporated herein. Notwithstanding anything else in the Terms, neither party limits or excludes liability for fraudulent misrepresentation.

11.2 You agree that if ClearCenter does not exercise or enforce any legal right or remedy which is contained in these Terms (or which ClearCenter has the benefit of under any applicable law), this will not be taken to be a formal waiver of ClearCenter’s rights and that those rights or remedies will still be available to ClearCenter.

11.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of these Terms will continue to be valid and enforceable.

11.4 You acknowledge and agree that each member of the group of companies of which ClearCenter is the parent shall be third party beneficiaries to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to these Terms (whether pursuant to the Contract (Rights of Third Parties) Act 1999 or otherwise).

11.5 The rights granted in the Terms may not be assigned or transferred by either you or ClearCenter without the prior written approval of the other party. Neither you nor ClearCenter shall be permitted to delegate their responsibilities or obligations under these Terms without the prior written approval of the other party.re: http://www.clearcenter.com/Company/terms/Page-2.html#ixzz39P6U0R1M

11.6 These Terms and your relationship with ClearCenter under these Terms shall be governed by the laws of New Zealand and you and ClearCenter hereby irrevocably submit to the exclusive jurisdiction of the courts of New Zealand. Notwithstanding this, you agree that ClearCenter shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

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