NOTE: On May 2nd, 2000, The United States Patent & Trademark Office (USPTO) granted to Despair Inc. an Official Registered Trademark for the "frowning" emoticon, USPTO Serial Number 75502288. The following is the official licensing agreement for said emoticon.
Do Not Fold, Bend, Mutilate or Spindle this agreement.
ELECTRONIC END USER LICENSE AGREEMENT FOR FROWNYTM
NOTICE: THIS IS A CONTRACT. BY OPENING THIS DOCUMENT YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. Please read this agreement carefully.
The following document contains Despair Inc.'s Official Registered Trademark, which combines a colon (":") with a hyphen ("-") and an open-parenthesis ("(") to create an ASC-II depiction of sadness, henceforth referred to as the "FrownyTM". This document also includes related documentation. In return for acquiring a license to use the FrownyTM and its requisite documentation, you agree to the following terms and conditions:
- Scope of Use. You may cut and paste the FrownyTM into one (1) and only one email, which may in turn be sent to one and only one recipient, who is restricted from further forwarding or otherwise duplicating this FrownyTM. Neither you nor the one legal recipient of this FrownyTM may resize, recolor or otherwise modify this item upon receipt of it. Failure to comply with any of the aforementioned terms will be a violation of trademark law and will as well void any warranty for the accompanying FrownyTM.
- Proprietary Rights and Obligations. The structure and organization of the FrownyTM is the valuable property of Despair. You agree that no copies shall be made of the FrownyTM, and that your single use of the FrownyTM in email shall be accompanied by this unedited Electronic End User License Agreement. As well, you agree not to alter, reverse engineer or disassemble the FrownyTM. Removal of any individual component of the FrownyTM is expressly forbidden and may result in a miscommunication of your demeanor to the recipient.
- Assignment. You may assign your rights under this Agreement to a third party who agrees in writing to be bound by this Agreement prior to the assignment provided that you transfer the sole copy of the FrownyTM and this related documentation to the third party and provided that you have not used the FrownyTM. Except as set forth above, you may not assign your rights under this Agreement.
- No Other Rights. Title to and ownership of the FrownyTM and documentation and any reproductions thereof shall remain with Despair. Except as stated above, this Agreement does not grant you any right (whether by license, ownership or otherwise) in or to intellectual property with respect to the FrownyTM.
- Term. This license is effective until terminated. Despair has the right to terminate your license immediately if you fail to comply with any term of this Agreement. Upon any such termination you will destroy the original FrownyTM and its related documentation.
- Use Restrictions. The use of the FrownyTM with any Instant Messaging Client, including America Online's Instant Messenger, is expressly forbidden, as it may induce a permanent and irreversible transmogrification of the FrownyTM into an icon which, while retaining some recognizable expression of sadness, is severely jaundiced and no longer protected by trademark rights extended to registration 75502288.
- Warranty. DESPAIR MAKES NO WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY EXCLUDED.
- Limit of Liability. (a) IN NO EVENT WILL DESPAIR BE LIABLE TO YOU FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, OR FOR ANY CLAIM BY ANY PARTY, EVEN IF A DESPAIR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) Some states or provinces do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
- Governing Law. This Agreement will be governed by the laws in force in the State of Texas excluding the application of its conflicts of laws rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. You agree that the FrownyTM will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act.
- Entire Agreement. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF YOUR AGREEMENT WITH DESPAIR WHICH SUPERSEDES ANY PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN DESPAIR AND YOU RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND YOUR OBLIGATIONS UNDER THIS AGREEMENT SHALL INURE TO THE BENEFIT OF YOUR LICENSORS WHOSE RIGHTS ARE LICENSED UNDER THIS AGREEMENT. NO VARIATION OF THE TERMS OF THIS AGREEMENT WILL BE ENFORCEABLE AGAINST DESPAIR UNLESS DESPAIR GIVES ITS EXPRESS CONSENT IN WRITING SIGNED BY AN OFFICER OF DESPAIR.
- Government End Users. The FrownyTM and documentation are "Commercial Items," as that term is defined at 48 C.F.R. § 2.101, consisting of "Commercial Computer Artwork" and "Commercial Computer Artwork Documentation," as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 22i7.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Artwork and Commercial Computer Artwork Documentation are being license to U.S. Government end users (A) only as Commercial Items and (B) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Despair Incorporated, 660 Preston Forest Center #153, Dallas, Texas, 75230-2718.
Despair and the FrownyTM are registered trademarks of Despair, Incorporated.
Inquiries and comments about either the FrownyTM or this licensing agreement may be directed to firstname.lastname@example.org.
Additional information about Despair may be obtained by visiting http://www.despair.com.
End license agreement. Actual FrownyTM included below. Please refer to the "FrownyTM" Owner's Manual for
instructions of proper use.
Copyright © 2001, Despair Inc.
This is a combination of the License Agreements from http://www.despair.com/lib/demotivators/frownylicense.txt and http://www.despair.com/waillisvol1i.html .
FrowniesTM are available for purchase at http://www.despair.com/frownies.html .
According to the USPTO's Trademark Electronic Search System (TESS) (http://tarr.uspto.gov/servlet/tarr?regse r=serial&entry=75502288), Despair was granted the trademark for "[p]rinted matter namely, greeting cards, posters and art prints."