Terms & Conditions
End User License Agreement
The Service and Software are duly owned and operated by a third-party entity (“Licensor”) from which Time Out! Computers Australia P\L(together, with its subsidiaries and affiliates, “Company”) has obtained an authorized license to resell, market, promote, sell or otherwise provide the same. For the purposes hereof, the users of the Service and Software are referred to as “you”, “your” or “User” and Company is referred to as the “Company”, “we”, “us” or “our”.
The “Service” shall mean the backup service for storage and recovery of computer, electronic and/or digital files and any and all services provided in connection therewith. The Service is intended to provide you with a backup of files from which files can be restored. Typically, the Service will consist of electronic transmission of data over a platform or medium (such, as without limitation, the Internet) to a location maintained to store such data. Users may then have access to retrieval of such stored data. The Service may be provided through any one or more media or technology platforms, including (without limitation) the Internet, mobile telephony or networks, or otherwise.
The “Software” shall mean the software through which the Service is delivered and all related components thereof, and any and software provided in connection therewith. The Software shall include any upgrades, new versions and amendments made available by Company as well as any training materials, installation guides and user documentation associated with the Software. The Software is typically installed on your computer(s), hardware system(s), device(s) or other physical item(s). Any reference to the Software shall be deemed to include the Software regardless of the form in which it is transmitted, downloaded, installed or used and whether it is obtained via the Internet, mobile telephony or networks, CD-ROM or otherwise.
The following is a legally binding end-user license agreement (the “Agreement”) between you and the Company with respect your access and use of the Service and Software. For good and valuable consideration (the adequacy and sufficiency of which is acknowledged by each of the parties) of the mutual promises of the parties contained herein, the parties hereby agree as set forth below. All Users will be subject to and bound by this Agreement.
Acceptance of Terms
BY ACCESSING, BROWSING AND/OR USING ANY SOFTWARE OR SERVICE, YOU BECOME A USER OF THE SAME AND EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPT AND AGREE TO EACH OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO ACCEPT EACH AND ALL OF THE FOLLOWING TERMS AND CONDITIONS AS SET FORTH BELOW, PLEASE DO NOT ACCESS, BROWSE OR USE ANY OF SOFTWARE OR SERVICES.
THE SOFTWARE OR SERVICE MAY NOT BE ACCESSED, USED OR OPERATED IN ANY JURISDICTION OR TERRITORY WHERE IT IS PROHIBITED BY APPLICABLE LAW, RULE OR REGULATION. COMPANY FORBIDS YOU FROM ACCESSING, USING OR OPERATING THE SOFTWARE OR SERVICE WHERE YOU ARE PROHIBITED FROM DOING SO BY APPLICABLE LAW, RULE OR REGULATION.
You must be at least 18 years old (or older, if an older age is required in your applicable jurisdiction in order to use or access the Software or Service) to use the Service or Software. By using the Service or Software, you represent and warrant that you are at least 18 years of age, or older if an older age is required in your applicable jurisdiction in order to use or access the Software or Service. If you are not such age or older, please do not access, use or browse the Service or Software.
Subject to the terms and conditions of this Agreement, you are granted only a limited, personal, non-exclusive, non-sublicensable, non-transferable and non-assignable license to download, install, and use the Software and Service on a computer in only the manner prescribed herein. For the avoidance of doubt, the Software or Service is licensed, not sold, to you and you can only use the Software and Service as expressly stated in this Agreement. Licensor owns the Software and Service, including without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks, and proprietary and confidential information rights in or associated with the Software and Service. Furthermore, Licensor (and, to the extent applicable, Company) reserves any and all rights not expressly granted to you in this Agreement. The Software and Service may be protected not only by copyright laws and international copyright treaties, but also other intellectual property laws and treaties.
You are permitted to use and install the Software and Service on one or more computers, or other devices, provided that the same are for your own direct benefit (and not that of any other person or entity. At any time during the Term or thereafter, Company (and/or Licensor) shall have the right to audit your use of the Service and Software and compliance with the terms and conditions of this Agreement.
Use of Service/Software
You may utilize the Service and Software for only your own personal, non-commercial use for the sole purposes for which the Service and Software are designed. You may not, under any circumstances whatsoever, use the Software or Service in a manner or for a purpose for which the Software or Service are not intended or designed.
You may not, under any circumstances whatsoever, make any copies (or attempt any duplication), whether directly or indirectly, of the Software or Service for any reason. In addition, you may not in any event, directly or indirectly, do any of the following: (a) remove any copyright, trademark, or other proprietary notices affixed to the Software or Service; (b) sell, transfer, rent, lease, or sub-license the Software or Service to any third party; (c) alter, change, repurpose or modify the Software or Service; (d) make the Software or Service available over a network or platform where it could be used by multiple computers or devices at the same time; (e) reverse engineer, disassemble, decompile or attempt to derive source code from the Software or Service; (f) prepare derivative works, improvements or intellectual property based on the Software or Service; (g) use the Software or Service for any unlawful, immoral, unethical or unreasonable purpose or activity; or (h) cause or intend the Software or Service to be used in any way or manner that may violate the intellectual property or other personal rights (including, but not limited to, privacy rights and ownership rights) of any other person or entity.
Failure by you to duly comply with applicable laws, rules and regulations regarding copyrights, patents and other intellectual property and personal rights may subject you to both civil and criminal liability, including (without limitation) possible fines and incarceration, and Company will not be responsible for any breaches by you of this Agreement or violations by you of any applicable law, rule or regulation. If, for any reason, you are uncertain about your rights (if any) to copy, distribute or use any material, you should contact an attorney and obtain legal advice regarding the same.
In its sole and absolute discretion, Company may (but shall be under no obligation to do so), from time to time, offer fixes, updates, and upgrades to you, including, but not limited to, new versions of the Software or Service. You may accept or reject such fixes, updates, or upgrades at your sole discretion and at your own exclusive risk. While Company may offer such items, neither Company nor Licensor is required and under any obligation whatsoever to provide any maintenance or services to you, including (without limitation) any support, updates, enhancements, or other modifications to the Software or Service. Unless explicitly stated otherwise in writing, the terms of this Agreement will govern any software or service fixes, updates, or upgrades provided by Company that replaces, modifies or supplements the Software or Service. Company and/or Licensor may also choose to make any fixes, updates or upgrades available by automatic download, wherefore you are hereby deemed to accept fixes, updates or upgrades upon your automatic download of the same.
If you elect to purchase, download, install or use any Third-Party Items, please be advised that all such software, services and activities are subject to the terms and conditions of a separate end-user license agreement (or similar agreement) between you and such third party that is the manufacturer, reseller, or proponent of such Third-Party Item. Neither Company nor Licensor is in any way responsible for, and makes no representation or warranties with respect to, any Third-Party Items. Furthermore, neither we nor the Licensor will be responsible or have any liability whatsoever for any damages that you incur with respect to Third-Party Items. YOU ARE STRONGLY ENCOURAGED TO CAREFULLY READ THE TERMS AND CONDITIONS OF ANY END-USER LICENSE AGREEMENT (OR SIMILAR AGREEMENT) WITH RESPECT TO ANY THIRD-PARTY ITEMS.
For the purposes of the Agreement, “Third Party Items” shall mean software, services, activities, content, materials, documents, graphics, products, goods or all such items made available, sold, offered or provided by a third person or entity (i.e. other than Company or Licensor) to you. Third Party Items may be used, obtained or accessed (without limitation) by users independently (and with no assistance or connection from Company or Licensor), directly through the Service or Software or by links presented by or through Company, the Service or the Software.
Scope of Software and Services
The scope of the Software and Services shall at all times be in the sole and absolute discretion of Company and Licensor. Without limiting the foregoing, Company and/or Licensor may choose, at its sole and absolute discretion, the times of any backups and the frequency and manner in which any and all backups are made. In addition, Company and/or Licensor may choose the scope, manner, design and function of any encryption technology or mechanisms used by it with respect to your data.
Neither Company nor Licensor represents or endorses the accuracy or reliability of, and specifically and expressly disclaims any and all liability related to (whether directly or indirectly), any information displayed, uploaded, posted on the Services or Software, or otherwise distributed or transmitted through the Software or Service, by any person or entity whatsoever. Moreover, the Company and/or Licensor, in their sole and absolute discretion, reserve the right to refuse to post, host or display, and the right to remove or delete, any information from the Software or Services, in whole or in part, for any reason (or no reason) at any time without any notice thereof to you or any other person or entity. Any comments, feedback or advice that you provide to us at, through, or relating to the Software or Services shall be deemed to be non-confidential and Licensor (and, to the extent applicable and otherwise permitted, Company) shall have an unrestricted and absolute right to post and publish the same (in our sole and absolute discretion) for any lawful purpose whatsoever.
Company, Licensor or their respective affiliates, vendors or representatives may make copies of any and all data stored as part of the backup and recovery of files on any and servers or hardware associated with the Service. Neither Company nor Licensor (or any of their affiliates, vendors or representatives) shall be obligated to archive such copies, and further, they assume no responsibility or liability for their safekeeping. Any such copies shall not be accessible by you except in conjunction with your use of the Service or Software. Neither Company or Licensor (or any of the respective affiliates, vendors or representatives) has any responsibility liability with respect to any copies of your data backed up through the Service or Software. No bailment or similar obligations is created by this Agreement or its performance.
The Service is provided via installation on your computer, device or hardware systems. You hereby expressly and unconditionally consent to the installation on your computer, device or hardware system of any and all materials, data, software and other items necessary for the Service and Software to operate as they are intended.
Data transmitted during backup may be encrypted by the Company or Licensor. Typically, Company or Licensor will encrypt data when transmitted and de-encrypt data during attempted recovery by a User of his, her or its files and stored data.
You must have your computer or other device turned on, powered up, connected to the appropriate platform (such as, without limitation, the Internet or mobile network), and in a suitably ready position to allow backup to occur as required by the Service or Software. You agree to provide computer, hardware, devices, telephones, equipment, software, a working Internet connection, data, files and any and all other materials and items required for your access and use the Service and Software. Neither Company nor Licensor represents or warrants that the Software and Service will work with your operating system, hardware, mobile telephone or personal digital assistant, device or computer. You are solely responsible for ensuring that you have all suitable equipment and systems to properly use the Service and Software. You agree to use the Software and Service for only up to the maximum storage capacity and file size capacity as paid for your applicable subscription to the Service and Software.
Your Warranties, Covenants and Duties
You hereby expressly represent, warranty, covenant and agree that you will not, directly or indirectly, do any of the following: (a) falsify or misrepresent any information regarding your identity or intentions with respect to any matter in connection with the Software or Service; (b) post, publish, transmit, distribute, or upload any information or materials through the Software or Services that the Company (or Licensor), in its sole and absolute discretion, deems unlawful, obscene, lewd, sexually explicit, derogatory, abusive, threatening, discriminatory with respect to race, religion or gender, or is otherwise reasonably disagreeable, offensive or objectionable; (c) post, publish, transmit, distribute, or upload any information or materials through the Software or Services that contains a virus, or any other harmful software code or programming routine, that could impair operation or function of the Software or Service or access of others who may, do or will access, browse or use the Software or Services; (d) post, publish, transmit, distribute, offer or upload any information or materials through the Software and Services that is (in whole or part) unlawful, false, deceptive, misleading, fraudulent, or otherwise reasonably disagreeable, offensive or objectionable, including (without limitation) any information, document, communication or transmission that constitutes, affirms, encourages or supports the commission of any illegal activity or any violation of any local, state, national or applicable foreign law, rule or regulation, including (without limitation) any laws that protect the intellectual property, personal or privacy rights of any person or entity; (e) post, publish, transmit, distribute, or upload any information, content, documents or materials through or in connection with the Software or Services that in any way violates any patent, copyright, trademark or any other proprietary intellectual property rights of others; (f) post, publish, transmit, distribute, or upload any information, documents, content or materials through or in connection with the Software or Services that violates any legal, property, intangible, confidentiality or privacy rights of others; (g) post, publish, transmit, distribute, or upload through or in connection with the Software or Services any bulk e-mail or text/phone message solicitations, chain letters, solicitations, advertisements, pyramid schemes or any other unsolicited communication, including, without limitation, spamming (whether via electronic mail or text/phone message) those who access, browse or use the Software or Services; (h) violating or attempting to violate the security of the Software or Services, or any third party network, system, server, or account, including, without limitation, engaging in any of the following activities: (i) accessing data, folders, information, content, materials, servers, accounts, databases, etc. which you are not authorized to access, (ii) impersonating our personnel (or any other person or entity) or engaging in any other pre-texting, (iii) attempting to (A) probe, scan or test the vulnerability of a system, server, account or network, or (B) breach security, validation or authentication measures of any of the foregoing, (iv) attempting to interfere with, disrupt or disable service or access or use of the Software or Services to or for any user, host, server, account or network, including, without limitation, via means of overloading, “flooding,” “mailbombing,” “denial of service” attacks, or “crashing”, (v) forging any TCP/IP packet header or any part of the header information in any e-mail or posting, (vi) taking any action in order to obtain services to which you are not entitled, or (vii) attempting to utilize another party’s account name or persona without first obtaining authorization from that party; (i) attempting to circumvent or alter any method of measuring, tracking, recording or billing for the Software or Service; and (j) reselling, re-distributing, sub-licensing or redirecting the Software or Service for any reason whatsoever.
Violations of the aforementioned representations, warranties and covenants and/or of the security of the Software and Services may result in (without limitation) severe civil or criminal liability for the offending party.
Additional Representations, Warranties and Covenants
You hereby expressly represent, warrant, covenant and agree that: (a) you have full capacity, right and authority to enter into and perform this Agreement; (b) your use of the Service and Software will not, directly or indirectly, infringe (in whole or in part) any intellectual property rights, including, but not limited to, patent, copyright, trademark, trade secret, mask work or other intellectual property rights, personal or privacy rights of Licensor, any third party or Company; (c) your use of the Service and Software will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Software and Service will not in any manner, directly or indirectly, disparage, defame, discredit or harm Licensor, Company or their respective reputation or goodwill; (e) your entry into this Agreement and/or use of the Software or Service hereunder does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; (f) your entry into this Agreement and use of the Software and Service is for a bona fide purpose and you are not using the Software or Service to resell any services or software or distribute or otherwise use the services or software for an improper, illegal, immoral or unethical purpose; and (g) you will only use the Service and Software in compliance with the highest standards and prevailing best practices regarding use of the same.
You agree to comply, at your sole and own expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement. You will immediately report to us any and all suspected or actual violations of the Agreement by others that you are aware of (or should be aware of, based upon the circumstances).
Company or Licensor may be subject to regulation by agencies of the government of United States of America and/or foreign governments, including, but not limited to, the United States Department of Commerce, which prohibit export or diversion of certain technical products to certain countries. You represent and warrant that you will comply in all respects with the applicable rules and regulations of any and all agencies of the governments of the United States of America and any and all foreign governments that are applicable to your use of the Software and Service and your performance of this Agreement.
Disclaimer of Legal Compliance
YOU EXPRESSLY UNDERSTAND AND ACKNOWLEDGE THAT THE SOFTWARE AND SERVICE MAY NOT CONFORM TO, OR MEET WITH, ANY OR ALL APPLICABLE REQUIREMENTS OF THE SARBANES-OXLEY ACT OF 2002 (AS AMENDED), THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) (AS AMENDED), THE GRAMM-LEACH-BILEY ACT (AS AMENDED) AND OTHER LAWS, RULES AND REGULATIONS OF THE UNITED STATES OR ANY FOREIGN JURISDICTION. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR SERVICES OR ITS COMPLIANCE (OR LACK THEREOF) WITH THE AFOREMENTIONED LAWS OR ANY OTHER LAWS, RULES OR REGULATIONS.
If you are given a user name and password by Company or Licensor in connection with your use or access of the Service or Software, you are solely and exclusively responsible for maintaining the confidentiality and security of such user name and password. Moreover, you are responsible and liable for any and all activities that occur under any such account. You agree to notify us immediately in the event of any unauthorized use of your account or any breach of account security of which you become aware or that you reasonably do or should suspect. However, regardless of such notification, we will under no circumstances whatsoever be liable or responsible for any loss that you incur as a result of any unauthorized use of your account (whether such use occurs with or without your knowledge). In addition, you will be responsible in the event that we (or any third party, including, but not limited to, Licensor) incurs any losses or damages whatsoever as a result of your account (whether authorized or known, or not, by you). All data submitted by you as part of the online account registration process shall be subject to section above entitled “Privacy”. The Company (or Licensor) may, in its sole and absolute discretion, reject or remove any user or User from its use or access to the Software or Service.
In certain situations, Company or Licensor may make available access to and use of the Service and Software by you in UltraSafe mode. When in UltraSafe mode, neither Company nor Licensor will be able to access your password. IN THE EVENT THAT YOU USE ULTRASAFE MODE AND YOU LOSE YOUR PASSWORD, WE CANNOT RETRIEVE IT AND YOUR BACKED UP DATA AND STORED FILES WILL REMAIN PERMANENTLY ENCRYPTED UNTIL YOU LOCATE YOUR PASSWORD TO UNENCRYPT THE FILES AND DATA.
The regular fee payable to access the Software or Service shall be a monthly or annually, recurring non-refundable fee, or such other fee, as published by Company from time to time (the “Fee”). Unless otherwise specified by Company, the Fee shall be (i) payable by automatic, pre-authorized charge to your credit card provided to us beginning on the date that you begin using the Service or Software (the “Start Date”), and (ii) charged and payable to us on every monthly anniversary of the Start Date, and shall be recurring and continuing for the entire Term, regardless of whether the Term ends earlier or is terminated by either party). No Fee shall be refundable to you once paid to us or charged by us to your credit card, and you shall receive no refund whatsoever at termination or expiration of any Fee already paid in advance to us. Fees may be changed or modified by us, in our sole and absolute discretion, at any time, and shall be effective upon notice thereof to you. All Fees are charged and payable to us in advance. Any and all late payments hereunder shall accrue delinquent interest and late fees at the rate of the lower of eighteen percent (18%) per annum and the maximum rate permitted by applicable law.
Company may charge Fees to you as it determines in its sole and absolute discretion. Without limiting the foregoing, Fees are typically calculated based upon the amount of data and size of storage used or reserved by you. Fee structures and rates will be communicated to you from time to time by Company. If you do not have access to or hold a credit card, Company may, in its sole and absolute discretion, choose to regularly invoice you in advance for your use of the Service and Software. Any and all Fees that are billed through invoice (as opposed to by credit card) must be fully paid within the number of days indicated on the applicable invoices.
Without limiting any rights of Company in this Section entitled “Fees”, the following shall also apply to the Software and Service: depending on your account and the then-current business practices and operating procedures of Company, Company may (in it sole and absolute discretion) require additional or supplemental Fees in respect of permitting or making available access to the Service or Software via more than one platform or medium to you. For example, in Company’s sole and absolute discretion, you may be required to hold separate accounts for each way in which you will access and/or use the Software and Service or you may be permitted to access and/or use the Software and Service through multiple platforms and media by using only one account; in addition, additional and/or separate Fees may apply for access and/or use of the Software and Service through different platforms and media.
In connection herewith, you are responsible for paying any and all applicable taxes (including, without limitation, sales tax, services tax, use tax and value-added tax), duties, levies, charges and excises imposed by any government agency or entity, except for those taxes that may be based on the income of Company. The Company shall have no obligation, responsibility or liability with respect to your aforementioned responsibilities or liabilities to any United States or foreign government agencies or entities.
You will be required submit to us information for billing and payment purposes, including (without limitation) a valid credit card number with available credit sufficient to pay the Fee on a monthly basis for the Term and other information required by us in our sole and absolute discretion. All such payment information submitted to us must be current, complete and accurate and you are responsible for updating such information should it become necessary at any time during the Term. Further, you authorize us to take any reasonable actions needed to verify the authenticity and validity of any credit card number provided to us. Under no circumstances whatsoever will we be liable for any overdraft charges or over-the-limit credit card fees, regardless of our fault or negligence thereof, that are incurred by you.
Trials and Promotions
From time to time, the Company or Licensor may offer certain trials or promotions to you. We and/or Licensor reserve the right to, in our sole and absolute discretion, to at any time (without any liability thereof) discontinue, modify, suspend, reorganize or terminate any such trials and promotions. Any trial or promotion will be subject to the terms and conditions of such trial or promotion, but in no event whatsoever shall any trial or promotion modify or change any of the terms and conditions of this Agreement (except as is expressly set forth the trial or promotion).
Upon your download and installation of Software, or otherwise at any time, Company or Licensor may offer you a free evaluation or trial period in which to test and evaluate the Software and Service. If you continue to use the Software and Service after such period is over, the first day after such period ends shall be your Start Date and you shall begin immediately accruing Fees owed to us thereafter.
The Term shall begin on the Start Date and continue in effect thereafter until such time as terminated by either us or you for any reason (or nor reason) pursuant to the “Termination” section below.
This Agreement shall remain effective and in full force and effect until terminated (i) by us at any time upon notice thereof to you, or (ii) by you upon fourteen (14) calendar days’ prior written notice to us. Upon any termination or expiration of this Agreement, any and all provisions and obligations, which are of a continuing nature or intent, shall survive, including (without limitation) the sections titled Proprietary Information, Indemnification and Limitation of Liability. Furthermore, in the event that this Agreement terminates or expires for any reason, you must immediately discontinue any and all use of the Software and Service and destroy, delete, or uninstall any and all copies of the Software or Service in your possession, whether on your computer or on any media or otherwise. Following termination or expiration of the Agreement, Company or Licensor may, in their respective sole and absolute discretion, choose to at any time erase, destroy, permanently delete any and all of your data, materials, content, information and files stored with or backed up through or via Company or Licensor.
All Company or Licensor information, materials, content, images, graphics, software, trademarks, logos, service marks provided on or through the Software or Service (collectively the “Proprietary Information”) is and are the sole and exclusive property of the Licensor or Company (as applicable) or are duly licensed by Licensor or the Company (as applicable), and may not under any circumstances whatsoever be used, copied, reproduced, distributed, republished, uploaded, downloaded, displayed, posted or transmitted by you in any form or by any means without the prior express written consent of Licensor and/or the Company (as applicable). Proprietary Information also includes, without limitation, information, materials, content, images, graphics, software, trademarks, logos, service marks licensed or made available to Licensor or Company by third parties. The Proprietary Information, including (without limitation) all HTML code, server-side code, XML code, and compilations of meta tag key words, specification and trade name data, product and service descriptions and all similar data and information, is exclusively owned or duly licensed by Licensor or the Company, and is and shall, to the maximum extent allowed by applicable law, be protected by foreign and domestic copyright and trademark laws, rules and regulations and applicable international treaty provisions. To the extent that the Proprietary Information is also covered by copyright law (and you are hereby advised that much or all of the Proprietary Information may be copyrighted), violators are hereby given notice that any such violations may result in severe civil and criminal penalties. The Company and Licensor each intend to have violators of this paragraph prosecuted to the maximum extent possible under applicable law.
Except as expressly and specifically set forth herein under the section above “Limited License”, you shall have absolutely no rights whatsoever to the Proprietary Information. COPYING OR REPRODUCTION OF THE PROPRIETARY INFORMATION, INCLUDING, BUT NOT LIMITED TO, ANY SOFTWARE, SERVICE OR CONTENT OR MATERIALS, TO ANY OTHER SERVER OR LOCATION FOR ANY REASON (SUCH AS, WITHOUT LIMITATION, FURTHER REPRODUCTION OR REDISTRIBUTION) IS EXPRESSLY AND STRICTLY PROHIBITED.
Except as expressly and specifically set forth herein under the section “Limited License” above, nothing in this Agreement is intended to grant any rights (including, without limitation, under or with respect to any patent, mask work right, copyright, trademark, title, interest in products or trade secret of Company or Licensor) to you. All such rights shall remain the sole and exclusive property of Licensor or the Company (as applicable) and you shall gain no interest, right or title therein by entering into or performing this Agreement or using the Software or Service. Further, nothing contained on or through the Software or Service, or in this Agreement, should be construed as granting (whether express, by implication, estoppel or otherwise) any license or right to you to use any intellectual property, trademarks, copyrights or other proprietary information (or the Proprietary Information) displayed on or through the Software or Service. The absence of a product or service name or logo anywhere in the text of the Software or Service does not constitute a waiver of any trademark or other intellectual property rights concerning that name or logo. UNDER NO CIRCUMSTANCES WHATSOEVER MAY YOU, DIRECTLY OR INDIRECTLY, REVERSE ENGINEER, DECOMPILE, OR OTHERWISE ATTEMPT TO DECIPHER THE SERVICE, SOFTWARE OR ANY OTHER ASPECT OF THE TECHNOLOGY, INTELLECTUAL PROPERTY, PRODUCTS, SERVICES OR PROPRIETARY INFORMATION OF LICENSOR OR THE COMPANY (AS APPLICABLE).
Notification of Infringement
We and/or Licensor will, in appropriate circumstances, terminate the access and use of the Software and Service for any person or entity who infringes (or is suspected of infringing) the rights, security or property of others. If any individual or entity believes that his, her or its rights, security or property has been used or copied in a prohibited manner (or otherwise infringed) through or in connection with the Software or Service, please provide our Infringement Agent a written notice containing the full details of such infringement and the action requested of the Company. Our Infringement Agent may be contacted by providing a written notice to us as described in the section entitled “General” below, with a copy to the same address and clearly marked on the envelope or cover of the notice as “Attn: Infringement Agent”.
Neither the Company nor the Licensor assumes any responsibility for verifying the content, materials, documents and information passed through or accessed via or in connection with the Software or Service. Your use of the Software and Service are at your sole and exclusive risk and at your own discretion and peril. Neither the Company nor the Licensor is responsible for any damages, losses, expenses or other injuries incurred by you as a result of, relating to, or in connection with, any content, materials, documents and information transmitted, distributed or uploaded through or in connection with the Software or Service.
The Software or Service may become unavailable due to routine maintenance or malfunction of computer equipment, wireless or local networks, devices, hardware or for other reasons, and in any such instance, may result in damages to your systems or operations; neither we nor Licensor shall have any liability whatsoever to you under any such circumstance. You shall be solely and wholly responsible for ensuring that any and all information, documents, materials or content obtained through or in connection with the Software or Service (i) does not contain any virus or other computer or other software code or subroutine designed to (or that actually does) disable, erase, impair or otherwise damage your systems, devices, hardware software or data, and (ii) are lawfully and properly used, uploaded, shared or accessed by you, are backed up or stored on your own systems, devices or servers. Neither the Company nor Licensor shall have any obligation or duty whatsoever to backup any portion of the Software or Service (or any information, content, materials or documents on the Software or Service). You expressly agree and acknowledge that you are not relying on us or Licensor to perform any backup or storing of your content, information, materials or documents.
Links to Third Parties
The Software and Service may contain links and pointers to Internet, mobile or other sites maintained by third parties. Neither the Company nor Licensor operates or controls in any respect any information, products or services on such third-party sites. Third-party links and pointers are included solely for your convenience, and do not constitute any endorsement or verification thereof by the Company or Licensor. You expressly agree to assume sole and whole responsibility for use and access of third party links and pointers. Each of the Company and Licensor expressly disclaim any and all liability and responsibility for third party links and pointers and the content of any third party sites, services or software. Furthermore, you are directed to take any and all precautions to ensure that third-party sites, services and software are free of such harmful items as (without limitation) viruses, worms, trojan horses and other items of a destructive nature. Neither the Company nor Licensor shall have any duty whatsoever to investigate, evaluate, recommend or otherwise provide information with respect to any third party site, services or software.
Links to Us
A party may only provide a hypertext link to the Software, Service or Licensor on another web site, if such hyperlink complies with specific requirements. Please contact us for more information and details before providing any such link to the Software, Service or Licensor. Without limiting the foregoing, the appearance, position and other aspects of the link must not be such as to directly or indirectly damage or dilute the goodwill associated with the name and trademarks of the Licensor, Company and/or the Software/Service, and must not create the false or misleading appearance that the Licensor, Company and/or the Software/Service is associated with, or endorses or sponsors, the linking web site. The Company or Licensor may selectively revoke consent to any link at any time (for any reason or no reason) in their respective sole and absolute discretion.
Disclaimer of Warranties
THE SOFTWARE AND SERVICE, AND ANY AND ALL INFORMATION, SERVICES, CONTENT AND MATERIALS THEREON AND THEREWITH, ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. TO THE FULLEST AND MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EACH OF THE COMPANY AND LICENSOR DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, NEITHER THE COMPANY NOR LICENSOR WARRANTS THAT: (1) THE INFORMATION, SERVICES, MATERIALS OR CONTENT ON THE SOFTWARE OR SERVICE IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THE SOFTWARE OR SERVICE (OR THROUGH THE SOFTWARE OR SERVICE) WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (3) ANY DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE, SERVICE OR THE SERVER THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SOFTWARE AND SERVICE IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, LICENSOR OR THEIR RESPECTIVE AGENTS AND REPRESENTATIVES WILL UNDER ANY CIRCUMSTANCES CREATE A WARRANTY, UNLESS SPECIFICALLY SET FORTH IN AN EXPRESS WRITING SIGNED BY AN OFFICER OF LICENSOR. SHOULD THE SOFTWARE OR SERVICE PROVE DEFECTIVE OR ERRONEOUS, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICE, REPAIR, OR CORRECTION AND NEITHER WE NOR LICENSOR WILL HAVE ANY LIABILITY WHATSOEVER WITH RESPECT THERETO.
You acknowledge and agree that the Service or Software may fail at any time, may not operate error-free, may be interrupted by power failure or otherwise, may be down for maintenance or troubleshooting, and may be subject to delays, disruptions, denial of service attacks, malfunction or other problems. Further, you acknowledge and agree that the Service and Software may fail to meet your needs. You agree that you will maintain a primary electronic file of your data and materials and will not use the Service or Software as a substitute therefor.
Limitation of Liability
NOTIWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES WHATSOEVER (AND REGARDLESS OF THE PURPORTED THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) WILL EITHER COMPANY OR LICENSOR BE LIABLE (EVEN IF EITHER OF THEM KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR: (1) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION, LOSS OF BUSINESS PROFITS OR REVENUES, LOSS OF USE OR LOSS OF BUSINESS OR PERSONAL INFORMATION) ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, THE SOFTWARE, SERVICE, OR THE RELATIONSHIP BETWEEN YOU AND COMPANY OR LICENSOR; OR (2) AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, THE SOFTWARE, SERVICE, OR THE RELATIONSHIP BETWEEN YOU AND COMPANY OR LICENSOR, WHICH EXCEEDS ONE UNITED STATES DOLLARS ($1.00). Each of you and us expressly acknowledge and agree that the limitations of liability set forth in this paragraph are an essential element of this Agreement, and in the absence of such limitations, the economic terms of this Agreement would have been substantially different than provided herein and/or the parties would not have entered into this Agreement.
You will, at your own expense, defend, indemnify and hold harmless each of Licensor and the Company, and each of their respective parents, subsidiaries, affiliates and agents (and all of their respective officers, directors, shareholders, agents, representatives, contractors, employees and customers) (each, an “Indemnitee”, and collectively, “Indemnitees”) from and against any and all loss, cost, expense, damage, claim, demand, or liability (a “Claim), including (without limitation) reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by, or demanded of, an Indemnitee, that, directly or indirectly, arises out of, results from or occurs in connection with: (a) your negligence, bad faith or willful misconduct; (b) your breach of any of the provisions of this Agreement; (c) your violation of any applicable law, rule or regulation; (d) (i) infringement by you of any intellectual property, proprietary or other rights of any third party, including (without limitation) any patent, copyright or trademark, (ii) unlawful disclosure, use, or misappropriation of a trade secret by you, or (iii) violation of any other third-party intellectual property right, or other property or personal right of any person or entity; or (e) your use of (or inability to use) the Software, Service or any Company or Licensor service, software or website, in any manner whatsoever. We or Licensor may assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us and Licensor in asserting any available defenses, and promptly reimburse all reasonable costs and expenses (including, without limitation, reasonable attorney and professional fees) in connection with, relating to or arising from our (and/or Licensor’s) defense in such matter. No settlement, compromise or adjudication of any Claim to which indemnity applies hereunder, shall be effective or permitted without the express and prior written consent of the Company and Licensor.
Changes or Specialized Modifications
The Company may, in its sole and absolute discretion, modify or change any or every aspect of the Agreement at any time (for any reason or no reason), effective immediately upon posting or public transmission or dissemination of such modifications or changes (or a revised version of this Agreement incorporating such modifications or changes therein) on or through the Software or Service. Please periodically consult the end of this Agreement to determine when the Agreement was last revised. You agree to periodically review this Agreement to ensure that you are in compliance with any ongoing changes or modifications that are made to the Agreement. Your continued use of the Software or Service after any such modifications or changes are posted will constitute your complete and unequivocal acceptance of any such modifications or changes to the Agreement. The Company reserves the right, but has no obligation whatsoever, to modify or change the Agreement as it applies to you or any other user, provided that any and all special modifications to the Agreement must be in writing and signed by an authorized officer of Company. Any specialized modifications so made shall apply exclusively and only to the user that is a party to such written special modification agreement.
Notwithstanding anything to the contrary in the section “General” below, you expressly agree that any use of the Software or Service by you that violates or is inconsistent with the terms of this Agreement (in whole or in part) may: (i) cause Company and/or Licensor irreparable damage and injunctive, and (ii) equitable or injunctive relief (including, but not limited to, specific performance) may be necessary to protect the rights or interests of Company and/or Licensor. Accordingly, you agree that Company and/or Licensor may in any such instance, in their respective sole and absolute discretion and judgment, request any suitable injunctive or other equitable relief from any court of competent jurisdiction (without posting any bond) and that you will not assert any objection thereof (including, but not limited to, a claim that such relief is inappropriate or that the harm alleged by Company and/or Licensor is not irreparable).
You shall not be able to assert any claims or remedies whatsoever (for any reason) against Licensor in connection with or relating to this Agreement. Any and all remedies or claims that you may have (if any) with respect to this Agreement shall be asserted only against the Company. If you are dissatisfied for any reason with the Software, Service or the terms of this Agreement, your sole and exclusive remedy (whether at law or equity) shall be to discontinue your use of the Software or Service and terminate this Agreement as described herein.
You hereby expressly agree that during the term of this Agreement and for a period of one (1) year thereafter, you will not, directly or indirectly, attempt to or actually circumvent this Agreement or its purpose or intent.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to the Agreement. You expressly agree that any controversy, dispute or claim (“Litigation”) arising out of, relating to, or in connection with, this Agreement or the Software/Service, or the alleged breach thereof, or relating to our activities or services or to us otherwise under this Agreement, shall be settled by confidential binding arbitration in ____________________________________ (provided, that if the Litigation involves, relates to or is connected to, whether directly or indirectly, Licensor, then the place of arbitration shall be Los Angeles County, California), in accordance with the applicable rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction. In the event of any Litigation, the parties expressly and irremovably consent to the exclusive venue and personal jurisdiction as set forth directly above. Any claim or cause of action by you arising out of or related to your use of the Software or Service, or otherwise with respect to this Agreement, must be filed by you or commenced within one (1) year after such claim or cause of action arose, or be forever barred. In the event of any Litigation arising from, related to or in connection with this Agreement or the Software or Service, the prevailing party thereof shall be entitled to recover its reasonable expenses, including (without limitation) attorneys’ fees and the costs of litigation and arbitration. The agreement to arbitrate in this paragraph shall not prevent Company or Licensor from seeking redress in any court of competent jurisdiction to protect Proprietary Information or intellectual property, nor shall it prevent a party from enforcing this agreement to arbitrate or enforcing any judgment in any court of competent jurisdiction. The respective rights and remedies of Company and Licensor under this Agreement are cumulative and may be exercised singularly or concurrently in each and every instance.
If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (i) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (ii) the remaining provisions of this Agreement will be unaffected thereby and will continue to remain in full force and effect at all times.
Neither Company nor Licensor will be liable for any failure to perform acts due to causes beyond its control (including, without limitation, electrical outage, Internet Service Provider or wireless network or other service provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war or Acts of God). If any such circumstances occur, Company shall use commercially reasonable efforts to attempt to provide reasonable notice to you of the same. The time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.
This Agreement is made by and between Company and you. However, it is hereby expressly acknowledged and agreed by the parties that Licensor is an express, intended and vested third party beneficiary in and of this Agreement. The Company’s protections, rights and benefits under this Agreement shall inure also to the benefit of Licensor. Furthermore, Licensor is expressly permitted and authorized to enforce (on its own behalf, on behalf of the Company, or in any combination thereof) this Agreement at any time (without prior notice thereof to any person, entity or party) on behalf of, in lieu of, in addition to or in conjunction with the Company.
Unless otherwise stated herein, any notices hereunder to Company shall be in writing and be delivered by hand or mail (as specified below) to the persons and at the addresses as set forth below and shall be deemed given upon (i) delivery if by hand, (ii) five (5) business days after mailing if by certified mail, return receipt requested, or (iii) confirmation of delivery in the case of overnight or express mail. Notices to you hereunder may be provided by electronic mail to the electronic mail address provided by you to Company (and such notice shall be deemed given immediately upon transmission thereof by Company). Either party may change its address for receipt of notice to the other party by delivering notice of such change pursuant to this paragraph.
Neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred (in whole or in part) by you without the prior express written consent of Company. Any attempted assignment by you in violation of this paragraph shall be null and void. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns.
This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which will be deemed a single agreement; provided, that your written or electronic signature is not necessary to manifest your assent or acceptance of this Agreement, and your use of the Software or Service as discussed herein shall in and of itself constitute such assent and acceptance. This Agreement may be accepted and executed in the manner provided herein and such acceptance as provided herein shall constitute a valid and legally binding agreement.
The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement. This Agreement shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel. Uses of the words “and”, “or” and “and/or” herein, when used with respect to Software or Services, shall be deemed to include “and” as well as “or”.
Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party.
Failure by Company or Licensor to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision. A waiver by Company or Licensor of any right, remedy or provision hereof shall only be effective if it is in an express writing that is signed by a duly authorized officer of Company or Licensor (as applicable).
This Agreement contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof. Except as provided in the paragraph titled “Changes or Specialized Modifications” above, any modification, addendum, or amendment to this Agreement will not be effective unless the same is in writing and signed by a duly authorized officer of Company (and concurrently approved in writing by Licensor). This Agreement may not be modified, supplemented or amended by an electronic signature (or electronic correspondence) from Company.
This Agreement was last revised November 15, 2011.
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