Mscape Terms of Service

Updated on January 29, 2008

Use of Site

1. BY ENTERING AND USING THE MSCAPE WEBSITE (THE "SITE"), YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE ("TERMS") whether you are a "Visitor" (which means that you simply browse the Mscape web site), a "Downloader" (which means that you browse and download from the site without registering) or a "Member" (which means that you have registered with Mscape). The term "User" in these Terms refers to Visitors, Downloaders and/or Members). Acceptance of these Terms creates a binding contract between you and Hewlett-Packard Company ("HP"), owner of the Site, that you will use the Site only in a manner consistent with these Terms. Your use of the Site and its services (together, the "Service") is entirely conditioned on and subject to your compliance with these Terms. If you do not agree with the Terms, you should leave the Site and discontinue use of the Services immediately. Please read these Terms carefully and save them. If you wish to become a Downloader, you must read these Terms and indicate your acceptance prior to each download. If you wish to become a Member, communicate with other Members and make full use of the Services, you must read these Terms and indicate your acceptance during the registration process.

2. HP authorizes you to view and download the HP materials at this Site (other than User Submissions, discussed below) subject to the terms and conditions of the appropriate End User License Agreement ("EULA") provided that you retain all copyright and other proprietary notices contained in the original materials on any copies of the materials. Except as otherwise provided in these Terms or in the associated EULA, you may not modify the HP materials at this Site in any way or reproduce or publicly display, perform, or distribute or otherwise use them for any other purpose than which is stated in the appropriate EULA. Any use of these materials on any other website or networked computer environment for any purpose is prohibited. The materials at this Site are copyrighted and any unauthorized use of any materials at this Site may violate copyright, trademark, and other laws. If you breach any of these Terms or any associated EULA, your authorization to use this Site automatically terminates and you must immediately destroy any downloaded or printed materials.

Age Requirements and Ability to Accept Terms of Service

You affirm that you are over 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 14, as the Service is not intended for children under 14. If you are under 14 years of age, then please do not use the Service.

User Conduct

1. In order to use the Service, you may need to create a User account. To create an account, you must submit certain requested information to HP, including your name and correct email address. When such information is requested by the Service, you must provide HP with true, accurate, current, and complete information about yourself.

2. You are responsible for any activity that occurs under your screen name and User account.

3. You are responsible for keeping your password secure and for notifying HP immediately of any breach of security or unauthorized use of your account.

4. You are solely responsible for your conduct and any data, text, information, screen names, graphics, photos, profiles, audio and video clips, links, or mediascapes (collectively, "Content") that you submit, post, and display on the Service.

5. By viewing the Site, you may be exposed to Content that you consider to be offensive. You take sole responsibility for such exposure.

6. You must not abuse, harass, threaten, impersonate or intimidate other Users of the Service.

7. You may not use the Service for any illegal or unauthorized purpose. International Users agree to comply with all local laws regarding online conduct and acceptable content.

8. You must not create or submit unwanted email to any Users of the Site ("Spam").

9. You may not collect or harvest any personally identifiable information, including account names, from the Site.

10. You may not use the Service to upload, download, transmit or link to Prohibited Content. Generally, Prohibited Content includes Content or other material that HP believes:

a. Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, encourages conduct that would violate or violates any law, harassing, hateful, racially or ethnically offensive, or otherwise inappropriate;
b. Comprises material that is copyrighted or protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless express written permission of the owner is obtained to use the material and to grant HP all of the license rights granted herein;
c. Violates or otherwise encroaches on the rights of others;
d. Contains viruses, worms, corrupt files, Trojan horses or other forms of corruptive code, or any other content which may compromise the Service (collectively, "Corruptive Code");
e. Advocates illegal activity;
f. Harms anyone, including minors;
g. Advertises or solicits business; or,
h. Provides a link to any of the above.

HP has the sole discretion to determine whether Content is Prohibited Content, and any Content submitted to the Service may be subject to examination from time to time. Although HP does not and will not examine or otherwise review all Content submitted or transmitted to the Service, HP may delete, move, and edit Content for any reason, at any time, without notice. HP in no way guarantees the accuracy, quality or appropriateness of Content available through the Service.

11. You may not use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Service in a manner that sends more request messages to the HP servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, HP grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of creating publicly available searchable indices of the Content, but not archives of such Content. HP reserves the right to revoke these exceptions either generally or in specific cases.

IMPORTANT NOTICE CONCERNING SAFE USE OF MEDIASCAPES

1. The mediascapes provided through the Service are intended to enable the User to enhance his or her experience of traveling to or interacting with actual physical locations by permitting the User to receive visual and audio information about those locations through the Mscape technology. YOUR USE OF THE MEDIASCAPES AVAILABLE THROUGH THIS SITE IS AT YOUR OWN RISK. At all times while you are using mediascapes at physical locations, you should exercise the same degree of caution you would normally use in the same or similar locations while not using mediascapes. It is your sole responsibility to place, secure, and use the mediascapes and the device on which they are running in a manner that will not cause accidents, personal injury or property damage, or in any way obstructs your view or impairs your ability to hear. YOU, THE USER OF THE MEDIASCAPES, ARE SOLELY RESPONSIBLE FOR OBSERVING SAFE DRIVING PRACTICES. DO NOT USE MEDIASCAPES WHILE DRIVING, CYCLING OR ENGAGING IN OTHER SIMILAR ACTIVITIES; PARK THE VEHICLE OR ASK A PASSENGER TO OPERATE THE MEDIASCAPE FOR YOU. HP and HP Affiliates, accept no responsibility for any damage or injury as a result of using mediascapes. Exercise good judgment and keep aware of your surroundings and your eyes on the road at all times!

2. Content, including User Submissions, available at the Site is made available to you from a variety of sources, solely as a convenience and has not been tested, endorsed, reviewed, approved or evaluated for safety or otherwise by HP. You may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against HP with respect thereto.

User Submissions

1. The Site may now or in the future permit Members to submit Content ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions. HP does not control or review User Submissions. Whether or not such User Submissions are published, HP does not guarantee any confidentiality with respect to any such submissions.

2. When you become a Member of the Service, you become a participant in an online community of people who enjoy creating, sharing and using media. In order for HP to make your User Submissions available to you and other Users, as well as to use the User Submissions to offer you a variety of online services, HP needs the rights to make use of all Content on the Service, in accordance with and subject to these Terms. You retain all of your ownership rights in your User Submission but by submitting your User Submissions to the Site, and as a condition of your use of the Service, you hereby grant HP a worldwide, irrevocable, non-exclusive, royalty-free, sublicensable, and transferable license to use, copy, display, perform, modify, transmit, make derivative works of, and distribute your User Submission, for the purpose of providing and promoting the Service, including without limitation, for redistributing part or all of the User Submissions (and derivative works thereof) in any media formats and through any media channels. The license granted by you to HP terminates once you remove or delete a User Submission from the Site.

3. As further conditions of use of the Service, you represent and warrant to HP that (a) you are the sole owner, author and copyright owner of your User Submission or you have written permission from the author, owner or copyright owner to make such User Submission available to the Service, and (b) the User Submission does not infringe upon any third party rights (including but not limited to any copyright, patent, trademark, trade secret, other intellectual property rights, moral rights, privacy rights or publicity rights); (c) the User Submission does not contain any defamatory, libelous or obscene material; (d) the User Submission does not violate any applicable laws, regulations, or contain any false statements or misrepresentations; and (e) you have the written consent, release, and/or permission of each and every identifiable individual person, or the owner/author of any objects or work in the User Submission to use the name or likeness of each and every such identifiable individual person, object or work, to enable inclusion and use of the User Submissions in the manner contemplated by the Service and these Terms.

Default License Terms

1. By participating in the Service you also agree to allow HP to make your User Submissions available to other users of the Site without compensation to you. As a courtesy to you, you will be given the option during the upload process to select a Creative Commons license to provide the terms on which other Users of the Site may download and use your mediascapes. If you choose NOT to select a Creative Commons license to grant rights to users of your mediascape, you hereby grant each user of your mediascape, a non-exclusive, royalty-free, worldwide, perpetual license to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions ("Default License Terms").

2. By participating in the Service you also agree that this Site is not intended for the sale or offer for sale of any mediascapes through User Submissions or otherwise.

Creative Commons License Terms

The Default License Terms described above will automatically apply to your User Submissions unless you voluntarily choose to select a Creative Commons License defining the terms on which your User Submissions ("Creative Commons License Terms") may be used. If you choose to select a Creative Commons license, it is your responsibility to ensure you understand the Creative Commons license and to consult with legal counsel about the form of Creative Commons license that is best for you. For more information on Creative Commons licenses, please visit http://creativecommons.org. Creative Commons is not affiliated with HP and any questions about the use or application of Creative Commons licenses to your User Submissions should be addressed to Creative Commons. You understand that it is your responsibility to monitor the use of your User Submissions and to enforce the terms of any license selected by you.

You understand and agree that other Members are free to impose Creative Commons License Terms on your use of their User Submissions and that these terms are different than the Default License Terms described above. You also understand that by downloading a User Submission, you agree to be bound by the Creative Commons License Terms that apply to such User Submission.

Copyright Notifications

HP does not permit copyright infringing activities and infringement of intellectual property rights on its Site, and HP will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. HP reserves the right to remove Content and User Submissions without prior notice. HP will also terminate Users' access to its Site, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has a User Submission removed from the Site more than twice.

In accordance with the Digital Millennium Copyright Act (17 USC § 512), HP is registered with the US Copyright Office as a Service Provider. If you are a copyright owner or an agent thereof and believe that any User Submission or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing:

1. a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
4. information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and if available, an electronic mail address;
5. a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
6. a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Any notifications of claimed copyright infringement must be sent to the Service Provider's Designated Copyright Agent. The Copyright Agent is the Hewlett-Packard Company, Trademark and Copyright Counsel, 20555 SH 249 MS 11701, Houston, Texas 77070, telephone number: (281) 518-9545, facsimile number: 281-514-8332, email: dmca_copyright_notice@hp.com. You acknowledge that if you fail to comply with all of the requirements set forth above under the Digital Millennium Copyright Act then your DMCA notice may not be valid.

Chat Rooms and Other User Forums

HP may, but is not obligated to, monitor or review any areas on the Site where Users transmit or post material, information or other communications ("Communications") or communicate solely with each other, including but not limited to chat rooms, bulletin boards or other forums, and the content of any such Communications. HP, however, will have no liability related to the content of any such Communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. HP retains the right to remove messages that include any material HP deems abusive, defamatory, obscene, infringing, or otherwise unacceptable.

Use of Software

Any software (other than User Submissions) that is made available to download from this Site is the copyrighted work of HP and/or its suppliers. Use of the software is governed by the terms of the EULA, if any, which accompanies or is included with the software . You may not download or install any Software that is accompanied by or includes a EULA unless you have read and accepted the terms of the EULA. REPRODUCTION OR REDISTRIBUTION OF THE SOFTWARE IS PROHIBITED EXCEPT AS PROVIDED FOR IN THE APPLICABLE EULA.

Third Party Software

From time to time, HP may make certain third party software programs available to you through the Site. Such third party programs are provided solely as a convenience to you. HP does not control and is not responsible for any of these programs or their content. Thus, HP does not endorse or make any representations about them, their safety, functionality or any results that may be expected from using them. If you decide to use any of the third-party software programs provided through this Site, you do this entirely at your own risk. If you provide any information about yourself through these third party programs or otherwise to the individuals or companies licensing these programs to you, that information will not be subject to HP's privacy policy.

Privacy

HP and its subsidiaries respect your privacy and are committed to protecting it. Please read our Online Privacy Policy (http://welcome.hp.com/country/us/en/privacy.html).

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER LAW, HP INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUPPLIERS, INFORMATION PROVIDERS, AND AGENTS (COLLECTIVELY "HP AFFILIATES") , WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING ANY LOSS OF DATA, REVENUE OR PROFIT) ARISING WITH RESPECT TO YOUR USE OF THE SERVICE, THE SOFTWARE, AND ANY CONTENT SUBMITTED BY YOU OR BY OTHER USERS OF THE SERVICE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO DAMAGES ARISING FROM (i) USE OF THE SERVICE, INTERRUPTION OF THE SERVICE OR INABILITY TO USE THE SERVICE, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES, (iv) ANY UNAUTHORIZED ACCESS TO OR USE OF HP'S SECURE SERVERS AND /OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (v) THIRD PARTY CONTENT MADE AVAILABLE TO YOU THROUGH THE SERVICE, (vi) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THIS SITE BY ANY THIRD PARTY, OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL HP OR HP AFFILIATES BE LIABLE FOR ANY CLAIM OF ANY NATURE, WHETHER DIRECT OR INDIRECT, ARISING FROM OR RELATED TO (I) CONTENT MADE AVAILABLE ON OR THROUGH THE SERVICE, INCLUDING ERRORS OR OMISSIONS IN SUCH CONTENT, OR (II) PERSONAL INJURY, LOSS OR PROPERTY DAMAGE INCURRED AS A RESULT OF YOUR ACCESS TO AND USE OF THE SERVICE. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. You may have other rights which vary from state to state.

Indemnity

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS HP AND HP AFFILIATES FROM AND AGAINST ALL LOSSES, CLAIMS, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING FROM: (i) YOUR USE OF AND ACCESS TO THE SERVICE, THE SOFTWARE, CONTENT, AND USER SUBMISSIONS; (ii) ANY VIOLATION OF THESE TERMS OR ANY ACTIVITY RELATED TO THE SERVICE (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR BY ANY OTHER PERSON ACCESSING THE SERVICE AS YOUR INVITEE, SUCH AS BY USING YOUR ACCOUNT; (iii) ANY CLAIM THAT YOUR CONTENT OR USER SUBMISSION CAUSED DAMAGE TO A THIRD-PARTY, AND (iv) ANY VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY, REAL PROPERTY, MORAL AND/OR PRIVACY RIGHT. THIS DEFENSE AND INDEMNIFICATION OBLIGATION WILL SURVIVE THESE TERMS OF SERVICE AND YOUR USE OF THE SITE.

NO WARRANTY

ANY PRODUCT OR SERVICE MADE AVAILABLE THROUGH THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, HARM TO YOU AND YOUR PROPERTY, HARM TO ANY THIRD PARTY AND HIS/HER /THEIR PROPERTY, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, HP AND HP AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OWNERSHIP, AND NON-INFRINGEMENT. HP MAKES NO WARRANTY OR REPRESENTATION ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITE LINKED TO THIS SITE, OR THAT (i) THE SERVICE WILL BE PROVIDED IN A MANNER THAT IS UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (ii) THE SERVICE IS OR WILL BE FREE OF VIRUSES, TROJAN HORSES, BUGS OR OTHER HARMFUL COMPONENTS, OR (iii) THE SERVICE WILL MEET YOUR REQUIREMENTS. HP ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (i) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (ii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, OR (iii) ANY INACCURACIES, ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SITE. HP AND HP AFFILIATES MAKE NO WARRANTIES OF ANY KIND WITH RESPECT TO SOFTWARE, GOODS, OR SERVICES THAT ARE PURCHASED, ACCESSED, OR OBTAINED THROUGH THE SERVICE OR THAT ARE ADVERTISED OR OFFERED ON THE SITE OR ANY HYPERLINKED SITE, INCLUDING THAT SOFTWARE WILL BE FREE OF CORRUPTIVE CODE. TO THE FULLEST EXTENT PERMITTED UNDER LAW, THE REMEDIES SET FORTH IN THESE TERMS ARE YOUR SOLE AND EXCLUSIVE REMEDIES.

Assignment

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, buy may be assigned by HP without restriction.

Termination

HP may, in its sole discretion, terminate your use of the Service, and remove and discard any Content, including User Submissions, at any time, without notice, for any reason, including: (i) conduct that violates these Terms or other policies or guidelines set forth by HP elsewhere within the Service, (ii) conduct HP believes is harmful to other users, the business of HP, or HP, or (iii) failure to maintain Active Participation in the Service. "Active Participation" is defined as logging into your account at least once every 365 days. HP will not be liable to you or any third-party for any termination of your access to the Service.

Links to Third Party Web Sites

Links on this Site to third-party websites are provided solely as a convenience to you. If you use these links, you will leave this Site. HP has not reviewed all of these third-party sites and does not control and is not responsible for any of these sites or their content. Thus, HP does not endorse or make any representations about them, or any information, software or other products or materials found there, or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to this Site, you do this entirely at your own risk.

Guidelines for Linking to This Site

You may create links to this Site from other sites, but only in accordance with these guidelines and in compliance with all applicable laws. A site that links to HP's websites:

May link to but not replicate HP content
Should not create a browser or border environment around HP content
Should not imply that HP is endorsing it or its products
Should not misrepresent its relationship with HP
Should not present false information about HP products or services
Should not use the HP logo without permission from HP
Should not contain content that could be construed as distasteful, offensive or controversial,
and should contain only content that is appropriate for all age groups

U.S. Government Restricted Rights

This Site contains confidential computer software and technical data. A valid License from HP is required for possession, use, or copying. Consistent with FAR 12.211 and 12.212, Commercial Computer Software, Computer Software Documentation, and Technical Data for Commercial Items are licensed to the U.S. Government under HP's standard commercial license terms.

General

HP administers this Site from its offices in Palo Alto, California. HP makes no representation that materials or services at this Site are appropriate or available for use outside the United States, and access to them from territories where their contents are illegal is prohibited. You may not use or export or re-export the materials or services at this Site or any copy or adaptation in violation of any applicable laws or regulations including without limitation U.S. export laws and regulations. If you choose to access this Site from outside the United States, you do so on your own initiative and are responsible for compliance with applicable local laws. These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of laws. The state and federal courts of California are the exclusive forum and venue to resolve any and all disputes arising out of or otherwise relating to these Terms. You consent to personal jurisdiction and venue by the state and federal courts of the State of California. HP may amend these Terms at any time, for any reason, and without notice, including the right to terminate the Service or any part of the Service. Any amendments or modifications made by HP will be prospective only. You should visit this page from time to time to review the then-current Terms because they are binding on you. These Terms constitute the entire agreement between you and HP governing your use of the Service. In the case of inconsistencies between these Terms and any information included in off-line materials (for example, promotional materials and mailers), these Terms will always control. You may also be subject to additional terms and conditions that may apply when you use third-party content, third-party services, or third-party software. The failure of HP to exercise or enforce any Term will not constitute a waiver of such Term. If any Term is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Service or these Terms will be filed within one year after such claim or cause of action arose, or be forever barred.