AIM SOFTWARE END USER LICENSE AGREEMENT

Software End User Agreement

You may use the AIM applications, software and services only on the condition that you agree to abide by the following terms.

BY INSTALLING OR USING OUR SOFTWARE, YOU ARE AGREEING ELECTRONICALLY TO THE TERMS OF THIS SOFTWARE END USER AGREEMENT (THE "AGREEMENT" or “LICENSE”). If you do not agree, do not install, copy or use the Software.

1. SOFTWARE. This Agreement and the supplemental terms below applies to the software, applications, services and any updates for AOL Instant Messenger (the "Software"). The specific components of the Software are listed in Appendix 1, below. The Software is provided by AOL Inc, its affiliates and suppliers ("we" or "us"). We may discontinue or change any feature of the Software at any time and without notice. In this Agreement, we use the term “you” or “your” to mean you as an individual or such entity in whose behalf you act, if any, and we use the term “AIM” to mean the AOL Instant Messenger service.
2. OWNERSHIP. This is a license of the Software and not a sale. The Software and any content and services provided with the Software is protected by copyright and other intellectual property laws and by international treaties. We and our suppliers own all rights in the Software. Your rights to use the Software are specified in this Agreement and we retain and reserve all rights not expressly granted to you.
3. LICENSE. Provided that you comply with the terms of this Agreement, we grant you a personal, limited, non-exclusive and non-transferable license to install and use the Software on a single, authorized computing device for personal and internal business purposes. This license does not entitle you to receive from us hard-copy documentation, support, telephone assistance, or enhancements or updates to the Software.
4. RESTRICTIONS. You may not: (i) make any copies of the Software other than an archival copy, (ii) modify or create any derivative works of the Software or documentation; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, underlying ideas, or algorithms of the Software, or in any way ascertain, decipher, or obtain the communications protocols for accessing our networks; (iv) copy, reproduce, reuse in another product or service, modify, alter, or display in any manner any Javascript or HTML files, or parts thereof, included in the Software; (v) use the Software to develop software or services that access the address space of the Software or that intercept the proxy; (vi) attempt to gain unauthorized access to any our or our suppliers' and distributors' services, accounts, computer systems or networks associated with the Software; (vii) rent, lend, lease, sublicense or otherwise transfer rights to the Software; (viii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (ix) block, disable, or otherwise effect any advertising, advertisement banner window, tabs, links to other sites and services, or other features that constitute an integral part of the Software; (x) incorporate, integrate or otherwise include the Software or any portion thereof (including the communications protocols) into any software, program or product that communicates, accesses, or otherwise connects with our services or that interconnects any of our services with any other instant messaging or other online service; (xi) use any of our services associated with the Software in any manner that could damage, disable, overburden, or impair such services or interfere with any other party's use and enjoyment of them; (xii) use the Software in any way that violates this Agreement or any law; (xiii) use the Software in any way that violates the rights of any third party; (xiv) use the Software in any way to transmit, directly or indirectly, any unsolicited bulk communications (such e-mails, voice, photos, video, chat or SPIM instant messages); or (xiii) authorize or assist any third party to do any of the things described in this paragraph.
5. CONTENT. Content, information, materials, graphics, audio and video ("Content') that may be accessed through the use of the Software is the property of its respective owner. You may only use such Content for personal, noncommercial purposes. The Content is offered for personal use only and subject to the rules that accompany that particular Content. You may not use the Content in a manner that exceeds the rights granted for your use of the Content, which includes unauthorized copying or distribution of the Content or creating an unauthorized derivative work. You may not circumvent any mechanisms for preventing the unauthorized reproduction or distribution of the Content. We make no representations or warranties regarding the accuracy or reliability of the information included in such Content. Use of any websites or services reached through the Software is subject to the terms of use presented on such website or service. Any Internet-based services we provide for use with the Software are subject to separate terms and conditions. You must abide by those terms if you use our services through the Software.
6. REGISTRATION. We and our affiliates may provide interactive online services for use with the Software, such as, AOL Mail, AIM or an address book. We may change or cancel those services at any time. In order to use these interactive services, you will need to register with us and obtain log-in credentials, such as a Screen Name. Please go to www.aol.com or www.aim.com if you want to register for certain services and obtain a Screen Name. You must agree to abide by the terms and condition, which will apply to any interactive online service that you elect to use with the Software.
7. ACCESS. You must provide at your own expense the equipment, Internet connections or wireless devices to access and use AIM. We do not guarantee that AIM can be accessed through all wireless devices or wireless service plans. We do not guarantee that AIM is available in all geographic locations. You acknowledge that when you use AIM, your wireless carrier may charge you standard fees for data, messaging and other wireless access. Check with your carrier to verify whether there are any such fees that may apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS AIM THROUGH YOUR MOBILE DEVICE. If you register to use any AIM mobile applications, you agree that we may communicate with you regarding AIM by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the mobile services may be communicated to us. When you access AIM on your wireless device, we may obtain information from your wireless carrier about the type of device you are using. We may use this information to notify you on what type of features and products from AIM may be available to you on your device. Certain features of AIM may require our collection of the phone number of your device. We may associate that phone number to the mobile device identification information; however we will not use that number for telemarketing. Some mobile phone service providers in the USA and other jurisdictions are required to operate a system that will pinpoint the physical location of devices that use their service. Depending on the provider, we may automatically receive this information. If you elect to use certain location or pinpoint based services (such as, GPS assisted navigation instruction, wireless tower location), we must periodically receive your location in order to provide such location-based services to you. By using AIM location based services, you authorize us to locate your hardware and to record, compile and display your location. As part of AIM, we may also collect and store certain information about our users, such as, users' wireless mobile subscriber ISDN and/or IMEI numbers (as applicable) and users' network access identifier information. This information will be used to provide you with the AIM services. We may use third party providers to help operate AIM through mobile systems and such providers may use the information in accordance with our Privacy Policy. Certain applications of AIM may allow you to adjust your privacy settings; please review any information or FAQ area that accompanies such application for more details and instructions.
8. YOUR RESPONSIBILITIES. You are responsible for: (a) all activities that occur under your account; (b)maintaining the confidentiality of any Screen Name, passwords or log-in credentials; (c) taking reasonable steps to prevent unauthorized access to confidential information stored in your mobile phone or other wireless device; and (d) complying with this agreement and with any and all applicable laws. You are solely responsible for the content you upload or otherwise provide (including any personal information you choose to submit or share using the Software, such as disclosing your home address and the home address of others) and the consequences of sharing or publishing such content with others and/or the general public. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY CONTACT OR INTERACTION THAT OCCURS BETWEEN YOU AND ANY OTHER USER OF THE SOFTWARE AND AIM SERVICE AND THAT THE ENTIRE RISK FALLS ON YOU. Once you have posted information about yourself or your family members, such as, the location where you live or work, it may be difficult to control the misuse of such information by others, which could compromise your own privacy. Therefore, consider if there is any information contained in your postings on AIM that you would rather be kept private. You must notify your wireless carrier immediately if your mobile phone is lost or stolen. We cannot be responsible for what happens if your account information (such as stored Screen Names and passwords) becomes known to someone else.
9. SUGGESTIONS. You agree that we may, without limitation and for no compensation, use in any manner all comments, suggestions, complaints and other feedback you provide relating to the Software.
10. YOUR REPRESENTATIONS. You represent and warrant that you have adequate legal capacity to enter into this Agreement, that you will use the Software only for lawful purposes and that you will not violate the terms of this Agreement.
11. AUTOMATED UPDATES. We may, but we are under no obligation, to provide update, patches and fixes (“Updates”). You may be given the opportunity to choose whether you want all Updates delivered automatically or you would prefer to be notified when a new Update is ready to be installed, or we make such Updates available for download. You authorize us to deliver automatically any Update if we believe it is necessary to provide for the continued functionality of the Software. Your use of the Updates will be governed by this Agreement unless you are asked to agree to new or additional terms at the time of download or installation.

12. PERFORMANCE AND USAGE INFORMATION.

    (a) TECHNICAL INFORMATION. Most of the Software is configured to report back information automatically relating to computer errors arising in connection with use of the Software, without notice to you. Information on your Software configuration settings may be included. This data is sent to us to help diagnose performance issues with, and improve, the Software.

    (b) FEATURE USAGE INFORMATION. The Software may also provide us with anonymous information about use of AOL features and buttons on the Software. We use this information in the aggregate to determine which Software features and buttons are most popular and useful to its users.

    (c) PERSONALIZATION. You may be asked to provide us with certain information so that we can personalize content presented to you through the Software. For example, you may be asked for your zip code, which could be used to provide you with relevant local weather and/or news reports.

13. THIRD PARTY OFFERINGS. You may only use third-party plug-ins or applications authorized by us for use with the Software. You use such third-party applications at your own risk. We make no representations or warranties, express or implied, regarding the third party applications. We have no obligation to correct errors or provide Updates for third party applications.

14. TERMINATION. This agreement automatically terminates if you fail to comply with the terms hereof or if you attempt to assign the agreement or transfer the software to a third party except as expressly permitted in this agreement. Upon termination, you must stop all use of the software and must destroy all copies of the Software that are in your possession. All provisions of this Agreement, except for the license grant in Section 3 above, survive the termination of this Agreement. We may take any technical remedies to prevent unsolicited bulk communications from entering, utilizing, or remaining within our computer or communications networks.

15. INJUNCTIVE RELIEF. You agree that your breach or threatened breach of this Agreement will cause us irreparable damage for which recovery of money damages would be inadequate and that we, therefore, may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.

16. DISCLAIMER OF WARRANTY.

    WE LICENSE THE SOFTWARE “AS IS” AND WITH ALL FAULTS. WE DO NOT WARRANT THAT THIS SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND COST OF ANY SERVICE AND REPAIR IS WITH YOU

    WE, OUR SUPPLIERS AND DISTRIBUTORS DISCLAIM ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, NON-INFRINGEMENT OR ACCURACY, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.

    NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. WE, OUR SUPPLIERS AND DISTRIBUTORS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE SOFTWARE.

    IF ANY IMPLIED WARRANTY MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN SUCH IMPLIED WARRANTY IS LIMITED TO 30 DAYS FROM THE DATE YOU ACQUIRED THE SOFTWARE FROM US OR OUR AUTHORIZED DISTRIBUTOR.

17. LIMITATION OF LIABILITY.

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR PARENT, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR DISTRIBUTORS (COLLECTIVELY, THE "AOL GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE AOL GROUP'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR SOFTWARE PRODUCT, AS DETERMINED AT AOL'S SOLE DISCRETION, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. THE AOL GROUP IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.

18. NO SUPPORT OR UPGRADE OBLIGATIONS. We, our suppliers and distributors are not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the Software.

19. IMPORT/EXPORT CONTROL. The Software is subject to export and import laws, regulations, rules and orders of the United States and foreign nations. You must comply with these laws that apply to the Software. You may not directly or indirectly export, re-export, transfer, or release the Software, any other commodities, software or technology received from us, or any direct product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government.

20. HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not designed, manufactured or intended for use in environments in which its failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, WE AND OUR SUPPLIERS AND DISTRIBUTORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE AOL GROUP WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE SOFTWARE IN SUCH APPLICATIONS.

21. U.S. GOVERNMENT END-USERS. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b) (2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Software with only those rights as described in this License.

22. ELECTRONIC NOTICES. YOU AGREE TO THIS LICENSE ELECTRONICALLY. YOU AUTHORIZE US TO PROVIE YOU ANY INFORMATION AND NOTICES REGARDING THE SOFTWARE (“NOTICES”) IN ELECTRONIC FORM. WE MAY PROVIDE NOTICES TO YOU (1) VIA E-MAIL IF YOU HAVE PROVIDED US WITH A VALID EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEB OR MOBILE PAGE DESIGNATED BY US FOR THIS PURPOSE. The delivery of any Notice is effective when sent or posted by us, regardless of whether you read the Notice or actually receive the delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the Software. As long as you are able to access the Internet using the Software, you will be able to receive electronic notices from us.

23. INDEMNIFICATION. Upon a request by us, you agree to defend, indemnify, and hold harmless us and our parent and other affiliated companies, and our respective employees, contractors, officers, directors, suppliers and agents and distributors from all liabilities, claims, and expenses, including attorney's fees that arise from your use or misuse of AIM and/or the Software. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

24. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES. You agree that the laws of the Commonwealth of Virginia govern this contract and any claim or dispute that you may have against us, without regard to Virginia’s conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us will be resolved by a court located in the Commonwealth of Virginia and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.

    PLEASE NOTE THAT BY AGREEING TO THESE TERMS OF USE, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE COMMONWEALTH OF VIRGINIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE COMMONWEALTH OF VIRGINIA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.

25. ENTIRE AGREEMENT. This Agreement and any supplemental terms constitutes the entire agreement between you and us concerning the subject matter of this Agreement, which may only be modified by us.

26. GENERAL TERMS. (a) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (b) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or we may at our option terminate this Agreement. (c) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (d) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (e) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. We may assign this Agreement to any entity at its sole discretion and without notice to you. (f) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (g) Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.

27. USER OUTSIDE THE U.S. If you are using the Software outside the U.S., then the provisions of this Section shall apply: (i) Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattaché, soient redigés en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable; and (iii) if the laws applicable to your use of the Software would prohibit the enforceability of this Agreement, or impose any additional burdens on AOL, or confer any rights to you that are materially different from the terms and conditions of this Agreement, then you are not authorized to use the Software and you agree to remove it from your computer.

APPENDIX 1

Components of the Software:

• AOL Instant Messenger - an instant messaging client
• AOL Loader - an application launcher
• AOL Media Playback Control - a controller and codecs that enable playback of audio and video content
• AIM Toolbar - a plug-in to the Software that provides easy access to AOL products, services, and features
• Talkback from SupportSoft - a utility for reporting errors to AOL

Last Updated: 4-28-2009