BY CONTINUING TO USE THIS COMPANY WEBSITE, YOU HEREBY AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS IT IS PRESENTED TO YOU AS OF THE DATE OF YOUR FIRST USE OF THE COMPANY WEBSITE. NO CHANGES (ADDITIONS OR DELETIONS) BY YOU TO THIS AGREEMENT WILL BE ACCEPTED BY THE COMPANY. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU SHOULD NOT USE THE WEBSITE.
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT. YOU SHOULD DOWNLOAD AND PRINT THIS AGREEMENT FOR YOUR RECORDS
By visiting this Company Website, You agree to the following:
1. Definitions. In addition to all other defined terms in this Agreement, the following terms have the following meaning:
(i) “Company Server” or “Server”” means the computer software or hardware that serves and hosts the Company Website to users across the Internet; and
(ii) “User(s)” mean any user of the Company Website.
2. Access; Conditions to Use of the Site.
2.1 Subject to all of the terms and conditions of this Agreement, the Company hereby grants to User a non-exclusive, revocable, and limited right to access and use the Company Website in strict compliance with this Agreement (“Access Right”) or with any other agreement that the User has entered into with the Company. The Company reserves the right to suspend or revoke this Access Right at the Company’s discretion without notice. Notwithstanding the foregoing Access Right, Company also has the right to change, suspend, or discontinue any (or all) aspects or features of the Company Website at any time, and from time to time, including the availability of any content or features on the Company Website. This Access Right granted to User under this Agreement will immediately terminate upon the expiration, cancellation or termination of this Agreement for any reason.
2.2 User shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to or access the Company Website, including, without limitation, Internet connections, modems, hardware, software, and long distance or local telephone service.
2.3 As a condition of User’s use of the Company Website, User covenants to the Company that User will not use the Company Website for any unlawful purpose or for any purpose that is prohibited by this Agreement. User may not use the Company Website in any manner that could damage, disable, overburden, or impair the Company Website and/or any Company Servers, or interfere with any other party's use and enjoyment of the Company Website. User may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Company Website.
2.4 Notwithstanding any assistance that Company may provide, the User assumes sole responsibility for the uploading and updating of any of the User’s Content (if any) as may be available through the Website.
2.5. Users further agree as follows:
2.5.1 Without limiting the generality of the foregoing, User agrees to all of the following provisions: (a) User will not upload to, distribute or otherwise publish through the Website any data, information, messages, text, images, works, material or any other content, including, without limitation, any personal identifiable information related to the User (collectively, "Content") that is unlawful, libelous, defamatory, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, obscene, or otherwise objectionable; (b) User will not upload or transmit any Content that would violate the rights of any party, would constitute or encourage a criminal offense, or would otherwise create liability or violate any local, state, federal or international law, (c) User will not upload or transmit any Content that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party anywhere; (d) User will not impersonate any person or entity or otherwise misrepresent the User’s affiliation with a person or entity; (e) User will not distribute or publish unsolicited promotions, advertising, or solicitations for any goods, services or money, including junk mail and junk e-mail; (f) User will not use the Company Website for purposes not authorized by the Company; and (g) User will not use the Company Website for any illegal purpose or any fraudulent scheme or transaction.
2.5.2 User hereby grants the Company a perpetual, worldwide, transferable, fully paid up right to use User’s Content to: (i) provide the User with the any of the services contemplated by the Company Website, under this Agreement or under any other contract between User and the Company, including without limitation any other uses normally intended for Users, (ii) to assistant or coordinate with any claims arising out of the use of the Company Website, including without limitation any claims involving the use, management or operation of the Company Website; and (iii) for any other lawful purpose in carrying out the Company’s business purposes or operations.
2.6 Without limiting the generality of any other provisions herein, User agrees to all of the following provisions: (a) Users are prohibited from violating or attempting to violate the security of the Company Website or any Company Server, including, without limitation, (i) accessing data not intended for such User or logging into a server or account which the User is not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service to any user, host, or network; or (iv) sending unsolicited e-mail, including promotions and/or advertising of products or services; (b) any violations of any system or network security (including, but not limited to, that of the Company Website or any Company Server) may result in civil or criminal liability; and (c) Company has the right to investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. Company also reserves the right to cooperate with any and all law enforcement agencies, including complying with warrants, court orders and subpoenas and disclosing to law enforcement agencies any information about any User and anything a User does with respect to the Company Website. By User’s use of the Company Website, User authorizes Company to take such action.
2.7 In the event the Company Website, now or in the future, allows User to upload, transmit, or otherwise contribute any Content to the Company Website, User hereby represents and warrants to the Company that User has the lawful right to distribute and reproduce such Content. Also, User is solely responsible for its conduct (and the conduct of its users) while using the Company Website, including, but not limited to, all Content in any folders or web pages (if any), or through any other transactions or interactions User generates, transmits, or maintains via the Company Website. The Company takes no responsibility for any such online distribution or publication by User or by any other party. The Company cannot and will not review every message or other Content that User or any other party may generate or post, and Company is not responsible for the Content thereof.
2.8 In addition to any other right to terminate this Agreement, the Company hereby has the absolute right to immediately terminate, without warning, any account that it believes, in its sole discretion, breaches any of the provisions of this Section 2.
3. Copyrights and Other Intellectual Property Rights; Reservation of Rights.
3.1 The Company’s policy is to respect the copyright and intellectual property rights of others. Company has the absolute right to (i) immediately terminate, without warning, all rights (including, without limitation, all Access Rights) of any Users who (in Company’s determination) appear to infringe upon the copyright or intellectual property rights of others, and (ii) remove any Content from the Company Website that, in the Company’s determination, may infringe the copyright or other intellectual property rights of any third party.
3.2 This Agreement shall not be interpreted to transfer any rights in any intellectual property from Company to any Users. Company, or its licensors, shall solely own all inventions, patents, trademarks/service marks, logos, images, graphics, content, reports, analysis, data, formulae, processes, techniques, software, website designs, all other copyrights, and all other intellectual property provided in, or made available by using, or otherwise contained in, the Company Website and otherwise provided in furtherance of this Agreement (collectively, “Company IP Assets”).
3.3 Company IP Assets may not be used by User without the prior written permission from the Company, and then only with proper acknowledgement. Any rights not expressly granted herein to User are reserved to the Company. In addition to any other conditions on User’s Access Right as set forth in this Agreement, User’s Access Right is subject to the following additional conditions: (i) User shall not modify, disassemble, decompile or reverse translate or create derivative works from any of the Company IP Assets or otherwise attempt to derive any source code of the same or let any third party do the same; (ii) no copyrighted material, content, or any other Company IP Assets may be downloaded, modified, copied, displayed, transferred, distributed, sold, published, broadcast or otherwise used except as expressly stated either in such materials or in this notice without the express prior written permission of the Company (which the Company may or may not grant in its sole discretion); (iii) User shall not remove, alter, cover or obscure any copyright notices or other proprietary rights notices of the Company or any other party placed on or embedded in the Company IP Assets and shall otherwise retain all such notices on all copies of the same; and (iv) use of any of the Company IP Assets is prohibited unless User is an authorized User in good standing. Unauthorized use is a violation of copyright and other intellectual property rights and is actionable under law. The Company reserves all rights in connection therewith.
3.4 User agrees to keep strictly confidential all Company IP Assets that have not been made publically available by Company. User also acknowledges and agrees that the terms and conditions of this provision shall survive the cancellation, expiration or termination of this Agreement for any reason.
4.1 User agrees that: (i) if the User has any Content or any login or password associated with this Company Website, then User is solely responsible for maintaining the confidentiality of the same; and (ii) if the User has any login or password associated with this Company Website, then User (a) is solely responsible for all uses of its login and password regardless of whether these uses are authorized by User, and (b) User will immediately notify the Company of any unauthorized use of the User’s login and password.
5. Indemnity. User will indemnify and hold Company, its parents, subsidiaries, affiliates, officers, directors, employees, agents, and members harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of the User's access to the Website, use of the Website, the violation or other breach of this Agreement by the User, or the infringement by the User, or any third party using the User's account, of any intellectual property or other right of any person or entity.
6. Site Resources; Provided “AS IS”. The Company Website may provide a wide variety of information, data, facts, and features (collectively, “Site Resources”) for the User’s benefit and use. While Company endeavors to provide the most current and accurate Site Resources as possible, the User acknowledges and agrees (i) the Site Resources may be general in nature, and may not apply to particular factual circumstances; and (ii) the Site Resources may contain errors and should not be relied upon or act as a substitution for independent investigation by the User. ALL SITE RESOURCES ARE PROVIDED “AS IS’. ANY SITE RESOURCES MADE AVAILABLE THROUGH THIS COMPANY WEBSITE MAY BE SUPERSEDED OR MAY INCLUDE INACCURACIES. WHERE A DOCUMENT OR OTHER CONTENT IS OBTAINED FROM ANOTHER SOURCE OTHER THAN DIRECTLY BY COMPANY, THEN THE OTHER SOURCE (AND ITS WEBSITE, IF APPLICABLE) TAKES PRECEDENCE. COMPANY MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THIS COMPANY WEBSITE, SITE RESOURCES AND ITS COMPANY SERVERS AT ANY TIME.
7. Links to Third Party Sites. As a convenience to Users, the Company Website may now, or in the future, provide links to other Internet web sites that are not owned by Company, and are not under Company’s control (“Third Party Websites”). Company does not control the Third Party Websites and is not responsible for the Content included in them including, without limitation, any subsequent links contained within a linked web site, or any changes or updates to a linked web site. Any reference from the Company Website to any entity, product, service or information does not constitute an endorsement or recommendation by Company. No Third Party Website is authorized to make any representations or warranties on Company’s behalf. Your visit to any Third Party Websites are subject to the terms and conditions of such Third Party Websites, and not this Company Website’s Agreement. User should refer to each Third Party Website’s specific terms.
8. Disclaimer of Warranties; Disclaimer of Liability.
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SITE RESOURCES, AND ANY AND ALL OTHER CONTENT, FEATURES OR FUNCTIONALITIES, PRODUCTS OR SERVICES PROVIDED BY COMPANY THROUGH THE COMPANY WEBSITE, ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” AND THE ENTIRE RISK OF USE AND PERFORMANCE OF THE FOREGOING REMAINS SOLELY WITH THE USER. COMPANY DISCLAIMS, AND MAKES NO REPRESENTATIONS OR WARRANTIES, ABOUT THE SUITABILITY OR ACCURACY OF THE SITE RESOURCES CONTAINED IN THIS COMPANY WEBSITE. ALL SITE RESOURCES AND ALL PRODUCTS NAD SERVICES PROVIDED TO ALL END USERS PURSUANT TO THE COMPANY WEBSITE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE COMPANY WEBSITE AND THE SITE RESOURCES ON THE COMPANY WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED, OR THAT ANY COMPANY SERVER MAKING THIS COMPANY WEBSITE AVAILABLE IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS. EACH USER UNDERSTANDS AND AGREES THAT THE ABOVE DISCLAIMERS ARE A FUNDAMENTAL PART OF THIS AGREEMENT.
8.2 COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM INCONVENIENCE, OR LOSS OF USE, RESOURCES OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE COMPANY WEBSITE, OR ANY SITE RESOURCES MADE AVAILABLE THROUGH THIS COMPANY WEBSITE, OR ANY THIRD PARTY WEBSITES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
10. Termination. In the event User, or anyone else using User’s privileges, violate the terms of this Agreement (as determined in Company’s discretion), Company reserves the right to take any action it deems appropriate, including, but not limited to, termination of this Agreement, including all Access Rights (as such term is defined in Section 2.1 above). In addition to any other right of Company to terminate this Agreement, Company further reserves the right, without notice, at any time, in its sole discretion, and for any reason, to terminate this Agreement, including all Access Rights Company is not required to provide mail or web page forwarding at termination.
11. Miscellaneous Provisions.
11.1 Governing Law; Jurisdiction and Venue for Dispute Resolution. This Agreement is governed by the laws of the State of New York without regard to its conflict of law rules. Any action resulting from, arising out of, or in connection with this Agreement or its subject matter will be brought exclusively in the appropriate federal and state courts located in New York, New York. By this Agreement, each Party expressly agrees that those courts will have personal jurisdiction with respect to that Party and waives any objection based on inconvenient forum
11.2 Notices. Except as otherwise expressly provided in this Agreement, any communications between the parties, or notices to be given hereunder, will be given in writing by personal delivery, express courier, facsimile, or United States Postal Service, postage prepaid, or by email to User at any address (or facsimile or email) it has provided to Company, or to the Company at the official address (or official facsimile or official email address) given for Company’s corporate headquarters, or to such other addresses or numbers as Company may hereafter indicate pursuant to this Section. Unless otherwise provided in this Agreement, any communication or notice so addressed and mailed will be deemed to be given five (5) days after mailing; provided, however, any communication or notice delivered:(i) by facsimile will be deemed to be given when the transmitting machine generates a receipt of a successful transmission of the notice; or (ii) by email will be deemed to be given when the email has been generated and sent by the sender. Unless otherwise provided in this Agreement, any communication or notice given by personal delivery will be deemed to be given immediately upon such delivery, provided such delivery is made to the person indicated below.
11.3 Remedies. User acknowledges that monetary damages may not be a sufficient remedy for unauthorized use of the Company Website, and therefore User agrees that Company shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court or arbitration panel of competent jurisdiction without necessity of posting a bond and without having to plead and prove lack of an adequate remedy at law.
11.4 Attorney Fees. If any suit or action is filed by any party to enforce this Agreement or otherwise with respect to the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees incurred in preparation or in prosecution or defense of such suit or action as fixed by the trial court and, if any appeal is taken from the decision of the trial court, reasonable attorney fees as fixed by the appellate court.
11.5 Binding Effect; No Assignment by User; Permissible Assignment by Company. This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however, that User may not assign this Agreement, in whole or in part. Any purported assignment in violation of this Section shall be void. Company shall have the right to assign this Agreement, or any part of it, in its sole discretion to any party, and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by such successors and assigns.
11.6 Entire Agreement; Modification; Waiver. This Agreement, including any attachments and exhibits attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Company, its agents, or employees, but only by an instrument in writing signed by an authorized employee of Company. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the remainder of the Agreement shall continue in effect.