DESKTOP CLICK-THROUGH AGREEMENT
THIS CLICK-THROUGH AGREEMENT (THIS "AGREEMENT") IS BETWEEN NEWSTARTTODAY.ORG A NON PROFIT ORGANIZATION AND YOU "CUSTOMER". BY CLICKING ON THE "ACCEPT" BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, RODERICK W CIFERRI ESQ AND LOSS MITIGATIONS LLC ARE UNWILLING TO LICENSE THE SOFTWARE (AS DEFINED BELOW) TO YOU, AND YOU MUST CLICK ON THE "DO NOT ACCEPT" BUTTON BELOW. THE "EFFECTIVE DATE" OF THIS AGREEMENT IS THE DATE UPON WHICH YOU CLICK THE "ACCEPT" BUTTON BELOW. FOR THE PURPOSE OF THIS AGREEMENT, YOU SHALL HEREAFTER BE REFERRED TO AS "CUSTOMER".
1. Background; Terms of Service.
RODERICK W CIFERRI ESQ AND LOSS MITIGATIONS LLC maintains and provides access to a certain software solution in object and source code form, called TheModPost (the "Software"), which is available at WWW.CIFERRILAW.COM's site identified by the URL WWW.CIFERRILAW.COM ("Website"). Customer wishes to use the Software to assist them in preparing a DO-IT-YOURSELF loss mitigations package for presentation to Customer's servicer / lender / investor.
CIFERRILAW.COM grants to Customer a nonexclusive, nontransferable, non sub-licensable, revocable and limited license to access and use the Software solely for Customer's personal purposes to aid in Customer's attempt to modify a mortgage or loss mitigation option on Customer's personal real property. The Software may not be downloaded from the Website or used for any other purpose.
3. License Restrictions.
Unless expressly otherwise set forth in this Agreement, Customer will not: (a) sell, assign, sub-license, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Software; (b) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Software; or (c) cause or permit any other party to do any of the foregoing.
As between the parties, CIFERRILAW.COM owns all right, title and interest in and to the Software. There are no implied licenses in this Agreement, and CIFERRILAW.COM reserves all rights not expressly granted under this Agreement.
5. Warranty; Disclaimer.
Customer represents warrants and covenants that: (a) Customer will abide by the terms of this Agreement; and (b) will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in his/her performance of this Agreement. Notwithstanding any terms to the contrary in this Agreement, Customer will remain solely and personally responsible for his/her acts or omissions. THE SOFTWARE IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT ANY GUARANTEES, REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. NEWSTARTTODAY.ORG AND ITS SUPPLIERS DO NOT WARRANT THAT ANY PART OF THE SOFTWARE WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. NEWSTARTTODAY.ORG AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (I) WARRANTIES OF MERCHANTABILITY, (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT NEWSTARTTODAY.ORG KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (III) WARRANTIES OF NON INFRINGEMENT OR CONDITION OF TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS RELIED ON NO WARRANTIES.
6. Limitation of Liability.
EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL LEGAL DEBT ATTORNEYS PLC AND / OR LOSS MITIGATIONS LLC BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF NEWSTARTTODAY.ORG HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL NEWSTARTTODAY.ORG'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO NEWSTARTTODAY.ORG, IF ANY, UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
7. Third Party Suppliers.
The Software may include software or other code distributed under license from third party suppliers. Customer acknowledges that such third party suppliers disclaim and make no representation or warranty with respect to the Software or any portion thereof and assume no liability for any claim that may arise with respect to the Software or Customer's use or inability to use the same.
8. Export Controls.
The Software and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Departmentís list of Specially Designated Nationals or the U.S. Commerce Departmentís Table of Deny Orders. By using the Software, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
The term of this Agreement will commence on the Effective Date and will remain in effect indefinitely, unless otherwise terminated in accordance with the terms of this Agreement. Without prejudice to any other rights, in the event of a breach of the Agreement by Customer, CIFERRILAW.COM may immediately terminate this Agreement. Upon expiration or termination of this Agreement, all rights granted to Customer under this Agreement will immediately cease. In addition to all definitions and this sentence, the following sections will survive any termination or expiration of this Agreement: 3, 4, 5, 6, 7, 8, 9, 10, and 11.
10. Use Prohibited Where Prohibited by Law.
USE OF THIS SOFTWARE IS STRICTLY PROHIBITED IN ANY JURISDICTION IN WHICH THE SALE OR USE OF THE SAME IS RESTRICTED OR PROHIBITED BY LAW AND CUSTOMER ACKNOWLEDGES THAT CUSTOMER SHALL CONFIRM THAT SUCH USE IS NOT PROHIBITED IN CUSTOMER'S STATE, PRIOR TO CUSTOMER'S USE OF THIS SOFTWARE.
This Agreement together with any exhibits attached hereto, are the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the County of NY in the State of NY without resort to its conflict of law provisions. Any actions concerning this Agreement or any aspect thereof must be brought in the Superior Court in the County of NY in the State of NY or in the Federal District Court for the District of NY. Customer may not transfer Customer's rights under this Agreement to any third party. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect.