And I thought I was special...
I received an email the other day via flickr from schmap.com notifying me that one of my uploaded pictures had been "short-listed for inclusion in our Schmap Austin Guide, to be published mid-April 2006." A quick google turned up that I'm not the only one. I decided to let vanity get the better of me, and agreed to submit my picture (admittedly one that could use a quick 'shop job) for "final consideration."
Below the fold, the EULA from the Schmap Player install, which does mention that some content, including photographs, has been licensed via Creative Commons or otherwise, and such licenses should be observed. There's even a whole section just on Creative Commons, which ought to make some people very happy. I'm no lawyer (thank God--sorry Susan, Kirsten, Geoff and anyone else I know with that proclivity ;-) but it seems to me they're being quite upstanding about the whole thing. I downloaded the San Francisco guide, and sure enough, there are flickr photos in it, and the links go right through.
Hmmm. Schmap is generating some buzz ;-)
The rather lengthy EULA included with the Schmap Player setup:
1. LICENSE GRANT
Subject to the terms and conditions of this Agreement, including without limitation the License Restrictions set forth in Section 2 below, Schmap grants You a nonexclusive, non-transferable license during the term of this Agreement to use the Software and Content on a single designated computer strictly for personal use by You and not for corporate, resell, commercial, or other revenue-generating purposes by You or any third parties. Your rights under this license shall automatically terminate without notice from Schmap if You fail to comply with any term(s) or condition(s) of this license. All license rights not expressly granted herein are reserved by Schmap. You shall use the Software and Content for legal purposes only and shall not use them in any manner that violates the laws of any jurisdiction.
2. LICENSE RESTRICTIONS
You agree that You shall not copy, reverse engineer, decompile, disassemble, translate, modify or make derivative works of the Software or Content, in whole or in part. Further, You shall not broadcast, rent, lease, host, disclose, publish, sell, assign, sublicense, market, or transfer the Software or Content or any part thereof (including without limitation any screenshots or prints created with the Software) or use it in any manner not expressly authorized by this Agreement. The Software and Content contain confidential and trade secret information of Schmap, and You shall at all times take reasonable steps to protect the confidentiality of such information. You further agree that Your usage of the Software and Content shall also be limited as follows: (i) You shall not post online on any website any Content or otherwise transmit any Content to a third party through any means other than the email feature, (ii) You shall not delete or alter any and all legal and/or proprietary notices contained within the Content, including without limitation any copyright, trademark, or patent notices, (iii), You shall abide with the terms of any third party licenses applicable to the Content, including without limitation any Creative Commons licenses, and You shall not use the email feature of the Software to distribute any Content in violation thereof, (iv) You may not use the Software or Content with or in communication with any mobile or wireless-connected electronic or computer devices (except to the extent expressly permitted herein or in a subsequent agreement), including, without limitation, cellular phones, palmtop and handheld computers, pagers, and personal digital assistants or PDAs, (v) You shall not use the Software or Content for any hazardous activities where the failure of the Software or Content could lead to death, personal injury, or severe physical or environmental damage, including without limitation the operation of energy-producing facilities, aircraft navigation or communication systems, or traffic control machines.
You acknowledge and agree that Schmap owns or has licensed from its licensors all right, title, and interest in and to the Software and Content and all copyrights, patents, trademarks, service marks, trade secrets, and other intellectual property rights relating thereto. You further acknowledge and agree that, except for the limited licenses expressly granted herein to You, nothing in the Agreement effects any transfer of any such rights, title or interest in or to the foregoing from Schmap to You. You shall not delete or alter in any manner the copyright, trademark, or other proprietary rights notices of Schmap and/or its licensors (if any) present in the Software, the Content, or any screenshots or prints created with the Software and/or Content. You shall reimburse Schmap for any and all expenses that Schmap may incur (including interest, attorneys' fees and other legal expenses) in connection with Schmap's efforts to enforce its rights against You with respect to the Software and/or Content or any of Schmap's intellectual property rights in the event that Schmap prevails in such enforcement efforts.
4. CONTENT PROVIDED BY THIRD PARTIES
The Software and Content includes information, listings, photographs, reviews and other data provided by third parties. The inclusion of such third party information by Schmap does not constitute or imply an endorsement or recommendation of any third party by Schmap. Schmap makes no representations or warranties regarding the accuracy or completeness of such third party information. You acknowledge and agree that Schmap has the right to revise and/or discontinue the information, listings, photographs, reviews, and other data provided by third parties at any time for any reason, and that Schmap may require you to modify and/or delete such third party data (or allow Schmap to automatically modify and/or delete such data) at any time for any reason.
5. CREATIVE COMMONS CONTENT
The Content may include photographs and other data provided by third parties that is licensable to You by way of a Creative Commons license. You can identify photographs that are licensable to You by way of a Creative Commons license (Creative Commons Photos) by looking for the cc badge found directly below the photograph along with the licensors name. You can click on the cc badge to access the applicable Creative Commons license. Please note that there are different types of Creative Commons licenses: should you have interest in using any of the Creative Commons Photos for your project, You should carefully review the Creative Commons license terms that apply to such photos. You may also click on the Creative Commons Photo itself to link to a high resolution version of the photograph on the Internet. This Agreement does not limit or restrict Your right to license any Creative Commons Photos.
6. LINKS TO THIRD PARTY SITES
7. ADVERTISEMENTS AND PROMOTIONS
Schmap reserves the right to run advertisements and promotions within the Software and the Content (the Promotions). You agree that Schmap has the right to run such Promotions without any compensation to You. The frequency, location, timing and extent of the Promotions shall be subject to change and shall be determined solely by Schmap in its discretion. You agree that Schmap has the right to update and/or revise the Software and/or Content at any time in connection with the Promotions. Any dealings, promotions, or transactions between You and any third parties with regards to the Promotions, and any other terms, conditions, warranties or representations associated with such dealings, promotions, or transactions, are solely between You and such third party. Schmap shall not be responsible or liable for any part of any such dealings, promotions, or transactions.
8. MAINTENANCE AND UPDATES
You acknowledge and agree that Schmap may update and/or revise the Software and/or the Content at any time that Your computer is linked to the Internet, but is under no obligation to inform You of or furnish to You any such updates and/or revisions. You further acknowledge and agree that Schmap may require You to update certain data pertaining to the Software and/or the Content as a condition to Your continued usage of the Software and/or Content (including without limitation updates and/or revisions required by Schmaps licensors). This Agreement does not grant You any right, license or interest in or to any support, maintenance, improvements, modifications, enhancements, revisions or updates to the Software or Content. To the extent that Schmap supplies any updates and/or revisions to You, such updates and/or revisions shall be subject to the terms of this Agreement unless Schmap indicates otherwise. Schmap reserves the right to charge fees for any future versions of the Software or Content or any additional modules for the Software or Content.
9. MAP INFORMATION
The map information provided by the Software and Content is intended for preliminary planning purposes only. You may find that road routes, the locations of points of interest, construction projects or other events may differ from the map. Likewise, any aerial photographs that may be viewed or included with the Software or Content are not real-time, may contain inaccuracies, and may differ from actual current conditions.
10. WARRANTY DISCLAIMER
THE SOFTWARE AND THE CONTENT ARE PROVIDED AS-IS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SCHMAP DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, THE CONTENT, ANY PHYSICAL MEDIA ON WHICH THE SOFTWARE OR CONTENT MAY RESIDE, THE RELATED MATERIALS AND ANY SUCH SERVICES OR CONTENT, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR SECURITY, THEIR MERCHANTABILITY, THEIR ACCURACY, OR THEIR NONINFRINGEMENT. SCHMAP DOES NOT WARRANT THAT THE SOFTWARE, THE CONTENT OR ANY RELATED SERVICES OR CONTENT IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS NOR DOES SCHMAP WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT THROUGH THE SOFTWARE OR CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, TO THE EXTENT YOUR JURISDICTION PERMITS SUCH LIMITATIONS, ANY IMPLIED REPRESENTATIONS, WARRANTIES, AND/OR TERMS OR CONDITIONS ARE LIMITED IN DURATION TO THIRTY DAYS FROM THE DATE YOU LICENSED THE SOFTWARE FROM SCHMAP OR TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW, IF LONGER. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS AS WELL, WHICH VARY BY JURISDICTION.
11. LIMITATION OF LIABILITY AND DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SCHMAP OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR THE CONTENT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF SCHMAP OR ITS LICENSORS, AND EVEN IF SCHMAP OR ANY OF ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE TOTAL AGGREGATE LIABILITY OF SCHMAP, ITS LICENSORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS, IF ANY, FOR DAMAGES SHALL NOT EXCEED U.S. $25.00.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN SECTION 10 AND SECTION 11 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
12. INTERNET SERVICE FEES
You agree to be responsible for any and all Internet service provider fees, telecommunication and other charges that may apply as a result of Your usage of the Software and/or Content.
Schmap is a trademark of Schmap Limited. Certain other words, phrases, names, designs or logos contained in the Software and Content may constitute trademarks, service marks or trade names of Schmap or other entities. The unauthorized use of any trademarks contained in the Software and/or Content is strictly prohibited.
14. EXPORT CONTROLS
Recognizing the international nature of the Internet, You agree to comply with all laws in your jurisdiction regarding the usage of this Software, the Content, and the Internet. Specifically, you agree that the Software and Content shall not be shipped, transferred or exported into any country or used in any manner that is prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software and/or Content is identified as export controlled items under the Export Laws, You represent and warrant that You are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that You are not otherwise prohibited under the Export Laws from receiving the Software and/or Content. All of Your rights to use the Software and Content are granted to You on the condition that such rights are immediately and automatically forfeited by You without notice from Schmap if You fail to comply with the terms of this Agreement.
15. U.S. GOVERNMENT END USERS
The Software is a commercial item, as that term is defined at 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire the Software with only those rights set forth therein.
In the event that You provide Schmap with any information regarding the Software and/or Content such as (but not limited to) feedback, data, answers, questions, comments, suggestions, plans, or concepts, You warrant and represent that You own or otherwise control all of the rights to such information and that use of such information by Schmap will not infringe or violate the rights of any third party. The submission of such information to Schmap shall in no way prevent the development, use, or sale of similar products, services, plans and/or concepts by Schmap for any purpose whatsoever.
Your license under this Agreement is effective until terminated. You may terminate this license at any time by destroying the Software, the Content, and all copies thereof. Schmap may terminate this license and Agreement immediately and without notice to You if You breach any of the terms or conditions of this Agreement. Upon any such termination, You must discontinue all use of the Software and the Content, and immediately destroy the Software and the Content together with all copies thereof, and uninstall the Software from any computers on which You have installed the Software. All of the provisions of this Agreement (other than Your license to use the Software and Content) shall survive the termination of the license, or any termination of this Agreement.
You may NOT use the Software and/or the Content if you are under 13 years of age.
19. Electronic Signatures
You agree that any document or record, including this Agreement, which is transmitted or received by electronic transmission between Schmap and You shall be treated in all manner and respects as an original signed document where sufficient indicia of acceptance by the respective party exists. You further agree that by entering into this Agreement that You shall hereafter accept electronic signatures or other reasonable electronic indicia as effective forms of acceptances. Such indicia of acceptance shall be considered for these purposes as an original signature and any such electronic transmission shall be considered to have the same binding legal effect as an original signed document. You agree that You shall not raise and hereby waive as a defense electronic transmission or electronic signatures to this Agreement.
While Schmap does not share your personally identifiable information with any third parties, you acknowledge and agree that Schmap may provide certain non-personally identifiable usage information to third parties, including information pertaining to the number of unique users of its destination/local guides. Schmap ascertains the number of unique users by assigning a unique player code to the Software on your computer at the point of installation. When You are connected to the Internet, the foregoing code will be communicated to Schmaps server(s) in order to collage aggregate usage statistics for our partners. You acknowledge and agree that the information gathered via the foregoing process may also be utilized by Schmap to inform You of updated product offerings and enable our advertisers to better customize their advertisements.
21. MISCELLANEOUS PROVISIONS
This Agreement constitutes the entire agreement between You and Schmap with reference to Your licensing of the Software and/or Content. There are no agreements, conditions, understandings or representations, oral or written, express or implied, with reference to the subject matter of this Agreement that are not merged herein, expressly referenced herein, or superseded hereby. This Agreement does not limit any rights that Schmap may have under trade secret, copyright, patent, trademark or other laws.
If there is any dispute about or involving this Agreement, the Software and/or License, You agree that such dispute shall be governed by the laws of the State of California without regard to its conflict-of-law provisions. You agree to personal jurisdiction by and venue in the state and federal courts of the State of California, City of San Francisco.
Regardless of where You acquired Your license, the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
If any provision of this Agreement is ruled unenforceable, such provision shall be enforced to the extent permissible, and the remainder of this Agreement shall remain in effect.
No decision, action or inaction by Schmap shall be construed to be a waiver of any of its available rights or remedies.
You may not assign, sublicense, delegate or transfer all or any portion of Your rights or responsibilities under this Agreement or Your license, by operation of law or otherwise, without Schmap's express prior written consent. Any attempts to do so shall be void and constitute a material breach of the Agreement. Schmap may freely assign, sublicense, delegate or transfer all or any portion of its rights or responsibilities under the Agreement by operation of law or otherwise without notice to You. Any assignment of this Agreement by Schmap in connection with a sale of its business shall relieve Schmap from any further liability hereunder. All the terms and provisions of the Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
The captions and section headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
22. THIRD PARTY LICENSES
Certain data provided to Schmap by its third party licensors is subject to additional terms and conditions:
(A) Wcities, Inc. (wcities).
Any copying, republication or redistribution of wcities content, including by framing or similar means, is expressly prohibited without the prior written consent of wcities. Wcities shall not be liable for any errors or delays in content, or for any actions taken in reliance thereon. "wcities.com", and the wcities logo, are trade marks and registered trade marks of the wcities.com group of companies around the world.
(B) U.S. Geological Survey (USGS).
The Software and/or Content includes certain data provided by USGS. The USGS home page is http://www.usgs.gov.
(C) National Geospatial-Intelligence Agency (NGA).
The Software and/or Content includes certain data provided by NGA. The NGA home page is http://www.nga.mil. The National Geospatial-Intelligence Agency name, initials, and seal are protected by 10 United States Code Section 445.
(D) Tele Atlas North America, Inc. (TANA).
If the Software or Content that you are downloading, copying, installing or otherwise using includes any TANA data or products (the TANA Products), the following provisions shall apply:
(i) The TANA Products may only be used for your internal business or personal use only and not for transfer, distribution, or disclosure to third parties or use for the benefit of third parties.
(ii) The TANA Products are the confidential information of TANA. You acknowledge that the TANA Products may include trade secrets, and You agree to hold the TANA Products in confidence and in trust.
(iii) Unauthorized copying of the TANA Products is expressly prohibited.
(iv) You may not remove or obscure any copyright, trademark notice, or restricted legend pertaining to the TANA Products.
(v) TANA is a third party beneficiary of Schmaps rights hereunder, but is not a party thereto and shall have no obligations hereunder.
(vi) TANA disclaims, to the extent permitted by applicable law, all warranties of TANA, whether express or implied, including but not limited to, the implied warranties of non-infringement, merchantability, completeness, accuracy, and fitness for a particular purpose.
(vii) You shall comply with all applicable export laws and regulations of the United States.
(viii) U.S. GOVERNMENT RIGHTS: If You are an agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, then use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and accompanying documentation, is restricted in accordance with the LIMITED or RESTRICTED rights as described in DFARS 252.227-7014(a)(1) (JUN 1995) (DOD commercial computer software definition), DFARS 227.7202-1 (DOD policy on commercial computer software), FAR 52.227-19 (JUN 1987) (commercial computer software clause for civilian agencies), DFARS 252.227-7015 (NOV 1995) (DOD technical data - commercial items clause); FAR 52.227-14 Alternates I, II, and III (JUN 1987) (civilian agency technical data and noncommercial computer software clause); and/or FAR 12.211 and FAR 12.212 (commercial item acquisitions), as applicable. In case of conflict between any of the FAR and DFARS provisions listed herein and this License, the construction that provides greater limitations on the Governments rights shall control. Contractor/manufacturer is Tele Atlas North America, Inc., 11 Lafayette Street, Lebanon, NH 03766-1445. Phone: 603.643. 0330. The Licensed Products are (c)1984-2006 by Tele Atlas North America, Inc. / Geographic Data Technology, Inc. ALL RIGHTS RESERVED. For purpose of any public disclosure provision under any federal, state or local law, it is agreed that the Licensed Products are a trade secret and a proprietary commercial product and not subject to disclosure.
(ix) If You an agency, department, or other entity of any State government, the United States Government or any other public entity or funded in whole or in part by the United States Government, then You hereby agrees to protect the Licensed Products from public disclosure and to consider the Licensed Products exempt from any statute, law, regulation, or code, including any Sunshine Act, Public Records Act, Freedom of Information Act, or equivalent, which permits public access and/or reproduction or use of the Licensed Products. In the event that such exemption is challenged under any such laws, this EULA shall be considered breached and any and all right to retain any copies or to use of the Licensed Products shall be terminated and considered immediately null and void. Any copies of the Licensed Products held by Licensee shall immediately be destroyed. If any court of competent jurisdiction considers this clause void and unenforceable, in whole or in part, for any reason, this EULA shall be considered terminated and null and void, in its entirety, and any and all copies of the Licensed Products shall immediately be destroyed.
(x) You acknowledge that use of the Licensed Products with a non-TANA map may result in increased variance between the location displayed on the map and ground truth location.
(xi) You shall not provide, display or allow access to the actual numerical latitude and longitude coordinates.
(xii) MultiNettm data of Denmark. In addition to the above provisions, You are prohibited from using any MultiNettm data of Denmark to create maps within telephone books or products similar to telephone books (e.g. directories), including such products in digital form.
(xiii) MultiNettm data of Great Britain. In addition to the above provisions, the following restrictions apply with respect to MultiNettm data of Great Britain: (a) You are prohibited from removing or obscuring any copyright, trademark, or restrictive legend belonging to Ordnance Survey. (b) THE MultiNettm data of Great Britain IS PROVIDED ON AN AS-IS AND WITH ALL FAULTS BASIS, AND Ordnance Survey disclaims all warranties with regard to your Usage of any MultiNettm data of Great Britain, whether express or implied, including but not limited to the implied warranties of non-infringement, merchantability, completeness, accuracy, and fitness for a particular purpose. You acknowledge that Ordnance Survey makes no warranty and gives no representation that the MultiNettm data of Great Britain is complete, accurate and/or up to date and it is an essential condition of this Agreement that You accept the TANA MultiNettm data of Great Britain on this basis. (c) Ordnance Survey disclaims all liability with respect to the MultiNettm data of Great Britain. (d) You are prohibited from using the MultiNettm data of Great Britain to create printed or published Derivative Products which are distributed freely or sold to the public without the prior permission of Ordnance Survey. (e) You shall indemnify Ordnance Survey from and against all claims, demands or actions, irrespective of the nature and cause of the claim, dmaind or action alleging loss, costs, expenses, damages or injuries (including injuries resulting from death) arising out of the use of the MultiNettm data of Great Britain.
(xiv) MultiNettm data of Norway. In addition to the above provisions, You are prohibited from using any MultiNettm data of Norway to create general purpose printed or digital maps, which are similar to the basic national products of the Norwegian Mapping Authority. Any Derivative Product of the MultiNettm data of Norway shall be regarded as similar to the basic national products of the Norwegian Mapping Authority if such Derivative Product has a regional or national coverage, and at the same time has a content, scale and format that are similar to the basic national products of the Norwegian Mapping Authority.
(xv) MultiNettm data of Poland. In addition to the above provisions, You are prohibited from using any MultiNettm data of Poland to create commercial printed maps or map products.
(xvi) MultiNettm data of CAN. In addition to the above provisions, the following restrictions with respect to MultiNettm CAN: (a) You are prohibited from removing or obscuring any copyright, trademark, or restrictive legend belonging to DMITI Spatial, Inc. (b) MULTINETtm CAN IS PROVIDED ON AN AS-IS AND WITH ALL FAULTS BASIS, AND DMTI Spatial, Inc., Her Majesty the Queen in Right of Canada, and the Minister of Natural Resources disclaim all warranties, whether express or implied, including but not limited to, the implied warranties of non-infringement, merchantability, completeness, accuracy, and fitness for a particular purpose. (c) DMTI Spatial, Inc., Her Majesty the Queen in Right of Canada, and the Minister of Natural Resources, and their respective officers, employees and agents, disclaim all liability with respect to MultiNettm CAN. (d) You are prohibited from changing any of the attributes or vector geometry of MultiNettm CAN. (e) You shall indemnify DMTI Spatial, Inc., Her Majesty the Queen in Right of Canada, and the Minister of Natural Resources, and their respective officers, employees and agents, from and against all claims, demands or actions, irrespective of the nature of the cause of the claim, demand or action alleging loss, costs, expenses, damages or injuries (including injuries resulting from death) arising out of the use of MultiNettm CAN.