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ICQ Open Xtraz Developer Agreement
 
ICQ Open Xtraz Developer Agreement
Welcome! ICQ has recently released a set of development tools and documentation that will enable developers to develop and implement various features based on the ICQ Open Xtraz Platform.

While we want to encourage you to develop new and innovative features and applications for ICQ, we also must comply with applicable laws, protect our users, our site and our company from harm. For this reason, there are a few requirements that you must agree to before we will grant you the right to use the Tools to develop Applications.


ICQ OPEN XTRAZ DEVELOPER AGREEMENT


Last Updated March 3, 2008

READ THIS AGREEMENT CAREFULLY. BY CLICKING "I AGREE", OR BY USING OR ACCESSING ANY OF THE TOOLS, YOU ARE AGREEING ELECTRONICALLY TO ALL OF THE TERMS AND CONDITIONS OF THIS ICQ OPEN XTRAZ DEVELOPER AGREEMENT AND TERMS OF SERVICE (THE "AGREEMENT"). YOU AGREE THAT ANY DISPUTE THAT YOU MAY HAVE WITH US OVER THIS AGREEMENT OR OPEN ICQ XTRAZ IN GENERAL MUST BE RESOLVED IN THE COMMONEWEALTH OF VIRGINIA. IF YOU DO NOT AGREE TO THIS AGREEMENT CLICK THE "CANCEL" BUTTON AND DO NOT INSTALL OR USE ANY OF THE TOOLS.
  1. DEFINITIONS. The following definitions apply in this Agreement:
    • “Application” means any feature, application, service that is developed and deployed by you under the terms and conditions of this Agreement, using the relevant Tools
    • “ICQ Distribution Properties” means the ICQ Gallery and the specific feature of the ICQ Client developed for the purpose of enabling the transfer of Applications to other ICQ users.
    • “ICQ Gallery” means www.icq.com or any other ICQ owned or operated Web site that offers the download and installation of Applications
    • “ICQ Service” means the ICQ® branded instant messaging communications service operated by or for ICQ, currently available through the Internet, which enables users of such service and other compatible services to exchange real-time, private, personalized messages with, and to monitor the online status of, other users.
    • “ICQ Client” means the proprietary, ICQ-provided client software application resident on a user’s personal computer (“PC”) that allows a registered end user to utilize all of the features and functionalities of the ICQ Service.
    • “ICQ” means ICQ LLC, a Delaware limited liability company with offices located at 22000 ICQ Way, Dulles, VA 20166, and any subsidiaries, successors, assignees, and affiliates, as well as any company that controls ICQ, LLC., directly or indirectly, and any other subsidiary of that controlling company.
    • “ICQ Messaging Network” means the ICQ Service and any and all applications, software, programs, plug-ins, systems, web sites, network, transmission facilities, servers or other functionality, and any part thereof, created or made available by ICQ and used directly or indirectly to provide the ICQ Service.
    • “ICQ Open Xtraz Platform” means the web based technology used by ICQ to provide features and services through the ICQ Client.
    • “API” means Application Programming Interface.
    • “Mandated Free Public Distribution Software” means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, and that requires as a condition of its use, modification or distribution that such software or other software incorporated into, derived from or distributed with such software (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of making derivative works; or (3) be redistributable at no charge.
    • “Presence” means the ICQ-provided functionality that displays whether an end user is online and available to communicate, or offline, idle or mobile.
    • “Presence Indicators” means the online presence or activity status indicators provided by ICQ as part of the Presence Tools.
    • “Presence Tools” means the Tools provided to you by ICQ to allow you to enable Presence on your Site.
    • “Sample Code” means source code that ICQ may provide to you in the SDK. The Sample Code, if any, will be considered part of the SDK.
    • “Site” means any website located at a URL address on which you place any code that uses, calls or accesses the ICQ Xtraz Platform API or any portion thereof, including, without limitation the Presence Tools
    • “Tools” means the ICQ-provided software code (in object or source code form, and instructions), such as, APIs, SDKs (“Software Development Kits”) and related templates and documentation (“Documentation”), data, content and services to enable you to develop and deploy customized Applications, including any Sample Code that may be included.
  2. THE LICENSE
    1. Application Tools. ICQ grants you a free-of-charge, limited, non-exclusive, non-transferable, non-sublicensable license during the Term to (i) reproduce and use the Tools solely in order to develop an Application and (ii) reproduce, use, and distribute such Application to end users solely through the ICQ Distribution Properties and enable such end users to use the Application. The Tools may be used solely in accordance with the terms and conditions of this Agreement and the applicable Documentation. Your Application may not block, disable, or otherwise affect any advertising, advertisement banner window, tabs, links to other sites and services, or other features that constitute an integral part of the ICQ Client. No rights or licenses are granted in the Tools other than those specifically stated in this Agreement.
    2. Key. When you upload an Application to the ICQ Service, ICQ will issue one or more alphanumeric software keys that are uniquely associated with your ICQ number and your Application(s) (the “Open Xtraz Keys”). You will be required to have a valid email address in your ICQ profile in order to upload your Application and receive an Open Xtraz Key. Each Application must at all times incorporate the applicable Open Xtraz Key or you will not be able to distribute the Application through the ICQ Open Xtraz galleries or services. ICQ may in its sole discretion limit the number of unique Open Xtraz Keys made available to you.
  3. ADDITIONAL TERMS AND CONDITIONS
    1. Limitation on Distribution Right. You acknowledge and agree that any libraries, Sample Code, and other materials made available by ICQ as part of the SDK may be redistributed solely in an unmodified, object code form embedded in your Application. In addition you acknowledge and agree that any Application developed pursuant to this Agreement and intended to be used through the ICQ Service may only be distributed through the ICQ Distribution Properties.
    2. Additional Restrictions
      1. In General. In addition to any other restrictions contained in this Agreement, you may not: (i) share with, sell, loan, provide, or distribute to anyone any Open Xtraz Key issued to you by ICQ in connection with Open Xtraz or the Tools; (ii) use any automated process to obtain any Open Xtraz Key; (iii) modify or create any derivative works of the Tools; (iv) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Tools provided in object code format only; (v) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Tools; (vi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Tools; (vii) use the Tools or your Application as a means to engage in conduct that disparages or devalues ICQ's reputation or goodwill, as determined in ICQ's sole discretion; or (viii) use any Open Xtraz Key to access any service or software not covered by this Agreement.
        Further, in addition to any other restrictions contained in this Agreement, you will not use any Tool to, and your Application will not, enable direct communication (e.g., presence data, text, video, VoIP, file transfers, or data exchanges) between the ICQ Service and any other instant messaging community or third party instant messaging service.
      2. Restrictions on Functionality of Applications. You may not develop or distribute any Application that (i) blocks or disables any host-based setting residing on the ICQ Messaging Network or the ICQ Service, or affects or otherwise modifies any user preference setting in a manner not explicitly authorized by an end user; (ii) is designed to generate or facilitate the generation of instant messenger-delivered SPAM ("SPIM"), SPAM, or other bulk unsolicited communications; (iii) may cause damage to or interfere with the proper functioning of any ICQ-provided software or the ICQ Messaging Network (or any features thereof) or a user's computer or computer files or that disables or circumvents copyright protection measures; (iv) contains, is bundled with, or otherwise enables any viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots, adware not disclosed pursuant to Section III.D of this Agreement, spyware or other computer programming routines designed or intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (v) otherwise violates or induces a third party to violate the most current version of the policies located at www.icq.com/legal; (vi) disparages, or devalues ICQ's reputation or goodwill, as determined in ICQ's discretion; (vii) violates or encourages conduct that would violate any criminal laws, any other laws, or any third party rights; or (viii) creates, or purports to create, any obligation on behalf of ICQ, or grants, or purports to grant, any rights or immunities to any third party under ICQ's intellectual property rights or its other proprietary rights, whether by use of Mandated Free Public Distribution Software or otherwise.
    3. Blocking and Open Xtraz Key Cancellation: No Support. ICQ reserves the right, in its discretion and without limiting its other legal remedies, to cancel any Open Xtraz Key it has issued to you and/or to prevent your Application from accessing or working with the ICQ Messaging Network at any time for any reason. You understand that ICQ provides no assistance with the Tools or ICQ Messaging Network, nor will ICQ be responsible for any assistance to you or to end users using your Application with respect to your or any of your end users' use of the Applications. ICQ is under no obligation to provide you with any error corrections, updates, upgrades, bug fixes and/or enhancements of the Tools.
    4. End User License. You must ensure that distribution or use of an Application requires end users to agree to an enforceable end user license containing at least the following specific minimum terms: (i) a provision stating that you, and not ICQ, are responsible for your Application; (ii) a provision indicating that the ICQ components and services are provided as-is, without any warranties, and that ICQ expressly disclaims all implied or express warranties, including the implied warranties of merchantability, accuracy, fitness for a particular purpose and non-infringement, regarding the ICQ components use or operation alone or in combination with your Application; (iii) a prohibition against modifying or creating derivative works of any ICQ components of your Application; (iv) a prohibition against decompiling, reverse engineering, disassembling, and otherwise reducing the ICQ components of your Application to a human-perceivable form, to the full extent allowed by law; (v) a provision indicating that ownership of the ICQ components and services resides with ICQ; (vi) a disclaimer of any liability for any service interruptions or the discontinuation of the ICQ Service and the inability to access the ICQ Messaging Network to the maximum extent permitted by law, even if you or your licensors have been informed of such damages; (vii) a disclaimer of indirect, special, incidental, punitive, and consequential damages; (viii) a prohibition against end users taking any actions that (a) create, or purport to create, any obligation on behalf of ICQ, or (b) grant, or purport to grant, any rights or immunities to any third party under ICQ's intellectual property rights or its other proprietary rights; and (ix) a complete and accurate disclosure to end users of the privacy practices and policies applicable to your Application, including without limitation notice to the end user (A) that ICQ's collection of data via the ICQ Messaging Network is subject to the ICQ Privacy Policy available at http://www.icq.com/privacy (B) that your collection of data is subject to your privacy policy, which may differ from the ICQ Messaging Network privacy policies, but which must comply with applicable laws and regulations, and (C) whether your Application contains any adware, including full disclosure of the impact of such adware on the end user. In addition, you must reproduce in their entirety any proprietary notices provided by ICQ or required by any third party in any code, including without limitation Sample Modifiable Code. End user agreement to these terms and conditions may be obtained by any suitable and legally enforceable means, including but not limited to, a click through agreement, or other means by which such end users manifest assent to the End User Agreement after having an opportunity to review the terms.
    5. Use of Trademarks and Logos.
      1. ICQ Marks; No Endorsement. Unless explicitly stated by ICQ, you may not use the ICQ name or any ICQ trademarks or logos, including but not limited to, the ICQ® or the ICQ “Flower logo” (collectively, the “ICQ Marks”) with your Applications. You may not in any way indicate that ICQ certifies, endorses, approves, or supports your Application.
    6. Changes to Agreement. ICQ may modify this Agreement at any time with or without notice. You agree to assume the responsibility for reviewing this Agreement at http://www.icq.com/legal frequently for updates or changes. If a modification is not acceptable to you, you may no longer use the Tools and must cease using Tool-enabled functionality in your Application and may not enable access to the ICQ Messaging Network through your Application. If you continue to use the Application after the Agreement has been modified, you will be deemed to have accepted the modifications. If you do not agree to the modifications of this Agreement, do not continue to use the Tools or the Application. ICQ encourages you to review the online version of the Agreement and the Additional Features Page frequently to ensure that you are aware of any modifications to your rights or obligations.
    7. Privacy Policy; Review; Monitoring. The ICQ Privacy Policy (available at www.icq.com/legal) describes ICQ's information collection and usage practices for ICQ users. ICQ will have the right but not the obligation to review and monitor usage of your Application developed using the Tools in any manner. At ICQ's option, you will provide ICQ four (4) free accounts and access to your Application in order to enable ICQ to conduct such review of your Application.
    8. Proprietary Rights. Title, ownership rights, and intellectual property rights in the ICQ network of services and facilities ("ICQ Network"), the ICQ Messaging Network, the ICQ Marks, any Open Xtraz Marks provided through the Tools, Documentation, the Tools, and the ICQ components and algorithms and access to the ICQ Messaging Network server complex (collectively, the "ICQ Property"), will remain in ICQ and/or its licensors and other suppliers. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with ICQ's or its licensors' or other suppliers' ownership of or rights with respect to the ICQ Property. The ICQ Property is protected by copyright, patent, trade secret and other intellectual property laws and by international treaties. ICQ owns all customer data collected by ICQ through the ICQ Messaging Network registration process. All trademarks used in connection with the ICQ Property are owned by ICQ, its affiliates or its licensors or other suppliers, and no license to use any such trademarks is provided hereunder, except to the extent any license is set forth in this Agreement. You acknowledge and agree that you obtain no intellectual property rights or licenses by this Agreement except for those licenses expressly granted herein. You agree that all comments, suggestions, complaints and other feedback relating to the ICQ Property that you may disclose or otherwise provide to ICQ may be used by ICQ and its licensors, suppliers and licensees in any manner whatsoever and without limitation of any kind. Notwithstanding the foregoing, ICQ will not be obligated to take action based upon any comments, suggestions, complaints or other feedback relating to the Tools.
    9. Non-Assert. In consideration of the licenses granted herein, and other consideration provided by ICQ to you under this Agreement, you covenant not to sue or otherwise assert any patent rights against ICQ or any ICQ affiliates or licensees for any alleged patent infringement during the term of this Agreement by any product or service that uses any Tools, Open Xtraz Application or the ICQ Messaging Network.
    10. Your Representations and Warranties.
      1. You warrant to ICQ that: (a) you have the legal capacity to enter into this Agreement; (b) all information provided by you to ICQ in connection with your registration for and use of the Tools is true and accurate; and (c) that your use of the Tools, and your Application, the operation thereof, any other products, services or information provided by you, and any updates, upgrades and modifications thereto, (i) will not be used in any commercially unreasonable manner; (ii) will not infringe any intellectual property rights of any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent; and (iii) will comply with all applicable laws, rules and regulations, including without limitation, consumer protection, data security, and privacy laws. Further, you will ensure that you possess all authorizations, approvals, consents, licenses, permits, certificates and other rights and permissions necessary to provide your Application and/or perform your obligations hereunder.
      2. You warrant to ICQ that: (a)you will not use Mandated Free Public Distribution Software, in whole or in part, in the development of any part of any Application in a manner that may subject the Tools or the ICQ Service, in whole or in part, to all or part of the license obligations of any Mandated Free Public Distribution Software; (b) any Mandated Free Public Distribution Software is contained solely within specific package and/or components of your Application; (c) you will comply with the instructions of the Open Source Federation (www.opensource.org) with respect to modification of Mandated Free Public Distribution Software, and will promptly report to ICQ, in writing, any deviation therefrom; and (e) you have processes and precautions necessary to prevent any risk that the Tools, or any other ICQ-provided software, will be provided to the open source community or otherwise into the public domain, as a result of your activities under this Agreement.
    11. ICQ’s Disclaimer of Warranty; As Is. THE SDK, TOOLS, ICQ MESSAGING NETWORK, AND THE SAMPLE CODE ARE PROVIDED WITH ALL FAULTS, ERRORS, DEFECTS AND REDUCED OR INACCURATE FUNCTIONALITY ON AN "AS IS" BASIS. ICQ, ITS LICENSORS AND OTHER SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES THAT THE SDK, TOOLS, ICQ MESSAGING NETWORK, AND OPEN XTRAZAPPLICATIONS ARE FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE SDK, TOOLS, AND ICQ MESSAGING NETWORK WILL MEET YOUR REQUIREMENTS, OR THAT ERRORS IN THE SDK, TOOLS, ICQ MESSAGING NETWORK, AND OPEN XTRAZ PLATFORM APPLICATIONS WILL BE CORRECTED, AND THE IMPLIED WARRANTIES THAT THE SDK, TOOLS, AND ICQ MESSAGING NETWORK ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, ICQ, ITS LICENSORS AND OTHER SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SDK, TOOLS, AND ICQ MESSAGING NETWORK, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ICQ OR AN ICQ AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. ICQ AND ITS LICENSORS AND OTHER SUPPLIERS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE SDK, TOOLS, AND ICQ MESSAGING NETWORK. YOU BEAR THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE AND YOU ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE TOOLS, AND/OR ICQ MESSAGING NETWORK IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
    12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ICQ OR ITS PARENT, AFFILIATES, SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "ICQ 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 SDK, TOOLS OR, THE ICQ MESSAGING NETWORK, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION. IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY OF THE ICQ GROUP FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED ONE HUNDRED DOLLARS (USD $100). THE TOOLS ARE PROVIDED WITHOUT CHARGE AND THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE IN THOSE JURISDICTIONS.
    13. Acknowledgement. The disclaimer of warranty and limitation of damages set forth above are essential elements of the bargain between ICQ and you. You agree that ICQ would not be able to provide the Tools on an economic basis without such limitations.
    14. Indemnification. You will indemnify, hold harmless and, at ICQ's request, defend ICQ and/or its licensors and other suppliers and/or distributors from and against any and all claims, liabilities, losses, damages, expenses and costs (including attorneys' fees and costs) relating to your breach of any warranty contained in Section III.J or any provision under this Agreement or otherwise arising out of your Application, including, but not limited to, any claim related to: (i) infringement or misappropriation of intellectual property rights, including but not limited to, infringement by your Application and/or any content contained therein (except to the extent such a claim is based solely on the Tools or the ICQ Messaging Network); and (ii) your use of the Tools. ICQ will give you prompt notice of any such claim made against it, and you and ICQ will cooperate in the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that ICQ must approve the terms of any settlement or compromise, and such approval will not be unreasonably withheld.
    15. Term; Termination. This Agreement commences upon the date you click “I Agree” or otherwise commence using any Tool and will continue in force thereafter, unless terminated as provided herein (the “Term”). ICQ may change, suspend, or discontinue all or any aspect of the Tools, including their availability, at any time, and may terminate your use of the Tools at any time prior to or after your development and/or deployment of your Application, without notice, for no reason or for any reason, including but not limited to your breach of any condition herein. You may terminate this Agreement by ceasing use of the Tools, including without limitation by removing any and all code from your Application enabling your use of the Tools or the ICQ Messaging Network. You agree that once the Agreement is terminated, you will not use the Tools or enable access or use of the ICQ Messaging Network or any Open Xtraz Application.
    16. Survival. The respective rights and obligations of ICQ and you under the provisions of Sections III.B.2 (“Restrictions”), III.H (“Proprietary Rights”), III.K (“Disclaimer”), III.L (“Limitation of Liability”), III.N (“Indemnification”), III.O (“Termination”), III.P (“Survival”), and III.W (“Miscellaneous”) will survive expiration or termination of this Agreement. ICQ will not be liable to you for damages of any sort resulting from terminating this Agreement.
    17. Import/Export Control. You agree to fully comply with all export and import laws, regulations, rules and orders of the United States, or any foreign government agency or authority, and not to directly or indirectly export, re-export, transfer, or release the Tools, any other commodities, or technology received from ICQ, 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. You further agree to assume responsibility for and bear all expenses relating to your compliance with the described laws, regulations, rules and orders, and obtaining all necessary authorizations and clearances.
    18. High-Risk Activities. The Tools are not fault-tolerant and are not designed, manufactured or intended for use in environments in which their 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, ICQ AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT ICQ WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE TOOLS IN SUCH APPLICATIONS.
    19. U.S. Government End Users. The Tools are a “commercial item”, as that term is defined in 48 C.F.R. § 2.101, consisting of “commercial software” and “commercial computer 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 Tools with only those rights as set forth herein.
    20. Electronic Notices. You agree to transact with us electronically, and that this Agreement, combined with your act of using the Open ICQ Platform Applications and service or clicking on “I Agree” have the same legal force and effect as a written contract with your written signature and satisfy any laws that require a writing or signature. YOU CONSENT TO ICQ PROVIDING YOU ANY INFORMATION AND NOTICES REGARDING THE TOOLS, OR ICQ MESSAGING NETWORK ("NOTICES") IN ELECTRONIC FORM. ICQ MAY PROVIDE NOTICES TO BY POSTING THE NOTICE ON A WEBSITE DESIGNATED BY ICQ FOR THIS PURPOSE. The delivery of any notice is effective when sent or posted by ICQ, regardless of whether you read the notice or actually receive delivery. You can withdraw your consent to receive notices electronically by discontinuing your use of the Tools.
    21. Injunctive Relief. You acknowledge and agree that, notwithstanding any other provisions of this Agreement, your breach or threatened breach of this Agreement will cause ICQ irreparable damage for which recovery of money damages would be inadequate and that ICQ, 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.
    22. Jurisdiction; Venue. You agree that the laws of the Commonwealth of Virginia govern this Agreement 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 will 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.
    23. Miscellaneous. (a) This Agreement constitutes the entire agreement between you and ICQ concerning the subject matter of this Agreement, which may only be modified by ICQ. (b) If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent as nearly as practicable, and the remaining portions remain in full force and effect, or ICQ may at its option instead 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) Your use of the Tools or participation in Open Xtraz does not create any partnership, joint venture or agency relationship between you and ICQ. Neither you nor ICQ has the power to direct or control the day to day activities of the other or to create or assume any obligation on behalf of the other. (e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. (f) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. ICQ may assign this Agreement to any entity at its sole discretion. (g) This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. (h) Neither party will 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. (i) You understand and agree that we reserve the right to use whatever technical and legal remedies available to us to prevent abuses to the ICQ developer network. We reserve the right to investigate or monitor in our own discretion and by any means we deem appropriate (x) your compliance with this Agreement and (y) any activity or conduct that we believe violates the terms of this Agreement. In addition to any other rights that we may have in this section and in the Agreement, we reserve the right to request an audit to investigate compliance with this Agreement. (z) If there is any inconsistency between this Agreement and other ICQ Terms of Service documents then with respect to the development, offering and distribution of Applications this Agreement shall prevail.


 
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