PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SOFTWARE. YOUR USE OF THE SOFTWARE INDICATES YOUR FULL ACCEPTANCE OF AND AGREEMENT TO ABIDE BY THESE TERMS IN ITS THEN-CURRENT FORM. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE SOFTWARE.
- General Provisions. Licensor hereby grants you a fully revocable, nontransferable, nonexclusive right to use the Software solely in accordance with the Agreement. The foregoing right has been granted to you subject to your agreement to abide by the Agreement as well as any other rules, procedures, policies, terms or conditions governing the Software that may be displayed from time to time on the Software or otherwise provided to you by Licensor and to which Users will be bound. You must be an authorized user of a party to a Service Agreement to access or use the Software. If you are using the Software on behalf of any other person or entity (each, a “Person”), (i) you must be duly authorized by such Person to act on their behalf and have the requisite power and authority to act on behalf of and legally bind such other Person; (ii) if such Person subsequently disputes such power or authority, you hereby agree to provide or execute and deliver such other documents and/or take such other actions required on your part to prove that you have (or had, at all relevant times) such requisite power and authority; and (iii) if such Person disputes such power or authority, you shall be liable and shall indemnify Licensor and the other Covered Persons (as hereinafter defined) for such dispute and/or for any failure of such Person to comply with the Agreement.The information accessible on and via the Software (the “Content”) is the property of Licensor and/or third parties, is not the property of any User, and is protected by copyright and other intellectual property and proprietary rights. Without limiting the foregoing or expanding any of your rights hereunder, you agree that you will not publish, broadcast, retransmit, reproduce, commercially exploit, create any derivative of or otherwise disseminate or disclose to any person such Content. You may not use the Software to transmit, distribute or store material (a) in violation of any Applicable Law (hereinafter defined), (b) in a manner that Licensor determines may infringe the copyright, trademark, trade secret or other intellectual property right of another or violate the privacy, publicity or other personal right of another, or (c) that is considered by Licensor, in its sole discretion, to be defamatory, obscene, threatening, abusive or hateful. You are prohibited from violating or attempting to violate the security of the Software. The material contained on the Software is believed to be accurate at the time it was posted, but is provided to Users “as-is” without any express or implied warranty as to availability, reliability, merchantability, non-infringement, accuracy, completeness, timeliness, fitness for a particular purpose or otherwise. The Software may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. Licensor does not guarantee the continuous or uninterrupted availability and accessibility of the Software.
- Passwords and Security. You may not access the Software unless you received Access Methods from and are authorized by Licensor. You are solely responsible for any use of or action taken under your Access Methods on the Software. You are solely responsible for maintaining the confidentiality and security of your Access Methods, and you hereby agree not to disclose your
Access Methods to any third party. You accept full responsibility for all activity conducted through your account and agree to and hereby release Licensor from any and all liability concerning such activity. You agree to notify Licensor immediately of any actual or suspected loss, theft or unauthorized use of your Access Methods or any other breach of security relating to the Software. Upon receipt of such notice, Licensor may terminate your Access Methods provided that you will remain responsible for any actions taken through the use of your Access Methods before they are terminated. In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Software, and you agree that you may be denied access to or use of the Software if you refuse to provide proof of identity or other method of identity verification. In Licensor’s sole discretion, Licensor may terminate, revoke, suspend, modify, or change any or all of your Access Methods at any time with or without prior notice. Licensor has no obligation to inquire as to the authority or propriety of any use of or action taken under your Access Methods and will not be responsible for any loss to you arising from any such use or action or from your failure to comply with the above. Licensor will take reasonable security precautions when using the Internet, telephone or other means to transport data or other communications, but expressly disclaims any and all liability for the accessing of any such data or communications by unauthorized persons or entities. You are responsible for obtaining the data network access necessary to use the Software. Your mobile network’s data and messaging rates and fees may apply if you access or use the Software from a mobile device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Software and any updates thereto. Licensor does not guarantee that the Software, or any portion thereof, will function on any particular hardware or devices.
- Investigation and Disclosure of Information. Licensor has the right, but not the obligation, to review, monitor, remove, or modify, any activity and content associated with the Software or any use thereof. Licensor may investigate any complaint or reported violation of its policies and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspending or terminating your use of all or any portion of the Software and denying you access to all or any portion of the Software. Licensor also reserves the right to report any activity that it suspects may violate any Applicable Law to appropriate law enforcement officials, regulators, or other persons or entities.
Each time you disclose or provide any Submission (including, without limitation, by uploading or providing any Submission to or through the Software), you shall be deemed to represent and warrant the following to Licensor with respect to such disclosure: (i) if such disclosure includes proprietary information, such proprietary information is owned solely by you or is duly licensed to you, which license permits such disclosure and the use thereof by Licensor as contemplated by this Agreement; (ii) such disclosure, and the use thereof by Licensor as contemplated hereby, does not and will not breach the terms of any agreement, duty, or obligation to which you or such Submission is subject; and (iii) neither the Submission so provided, nor your submission, uploading, publishing or otherwise making available of such Submission, nor Licensor’s use of such Submission as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any Applicable Law.
You acknowledge and agree that, as between Licensor and you, to the fullest extent permitted by Applicable Law, all right, title and interest in and to the Software, all Content, and all modifications and enhancements thereof or thereto, including, without limitation, all rights under copyright and patent and other intellectual property rights, belong to and are retained solely by Licensor or Licensor’s licensors and providers, as applicable. Licensor reserves all rights not expressly granted under the Agreement. You are authorized to access and use the Software and related Content as necessary to use the Software as contemplated by the Agreement, provided that you continue to, at all times, comply in full with the Agreement
- Termination. Licensor reserves the right to reject your registration or suspend or terminate your access to and use of all or any portion of the Software at any time and for any reason, in its sole discretion. In the event your use of the Software is suspended or terminated, the Agreement will continue to apply to your past use of the Software in the form in which it then existed at the time of the subject use. Termination of your access to and use of the Software shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you otherwise may have to Licensor.
- Disclaimer of Warranties. THE SOFTWARE AND ALL SERVICES AND INFORMATION AVAILABLE ON OR VIA THE SOFTWARE ARE PROVIDED “AS-IS” AND “ASAVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES CONCERNING THE AVAILABILITY, RELIABILITY, ACCURACY, COMPLETENESS, TIMELINESS OR SEQUENCING OF THE SOFTWARE OR THE INFORMATION, PRODUCTS OR SERVICES AVAILABLE ON OR VIA THE SOFTWARE; AND (2) ANY WARRANTIES OF TITLE OR EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY ASSET, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION.
- Limitation of Liability. IN NO EVENT SHALL LICENSOR OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS OR EMPLOYEES (COLLECTIVELY, “COVERED PERSONS”) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, THE SOFTWARE, THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY PRODUCTS, SERVICES OR INFORMATION SUBMITTED THERETO OR PURCHASED, OBTAINED OR STORED IN OR FROM THE SOFTWARE, OR TRANSACTIONS ENTERED INTO VIA THE SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF LICENSOR OR ANY OF ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL THE LIABILITY OF ANY COVERED PERSON IN ANY CIRCUMSTANCE EXCEED THE DAMAGES CAP SET FORTH IN SECTION 11 OF THE SERVICES AGREEMENT. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THESE LIMITATIONS ALSO APPLY TO ANY THIRD-PARTY CLAIMS AGAINST USERS.
- Indemnity. You agree to indemnify, defend and hold harmless each Covered Person from and against any and all suits, losses, claims, demands, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (“Claims”) arising from or relating to (i) your use of the Software; (ii) your breach of the Agreement or any representation, warranty or covenant made by you herein; (iii) your violation of any Applicable Law or any third party’s rights or (iv) your infringement of any right to any Third Party IP (hereinafter defined). Licensor hereby agrees to indemnify you from and against any Claim brought against you to the extent such Claim is based on an allegation that the Services infringe any United States patent, copyright, trademark or other proprietary right. Any such Claim described in this Section 8 is herein referred to as an “Infringement Claim”. Licensor shall indemnify you by paying (a) the resulting costs and damages finally awarded against you by a court of competent jurisdiction to the extent that such are the result of the Infringement Claim, or (b) the amounts stated in a written settlement negotiated and approved by Licensor. Licensor’s obligations under this Section are conditioned upon you (i) giving prompt written notice of the Infringement Claim to Licensor, (ii) permitting Licensor to retain sole control of the investigation, defense or settlement of the Infringement Claim and (iii) using all reasonable efforts to mitigate any actual or anticipated claims and providing Licensor with cooperation and assistance as Licensor may reasonably request in connection with the Infringement Claim. Licensor shall have no obligation hereunder to defend you against any Infringement Claim (A) resulting from use of the Software other than as authorized by the Agreement, (B) resulting from a modification of the Software other than by Licensor, (C) to the extent the Infringement Claim arises from or is based on the use of the Software with other products, services or data not supplied by Licensor if the Infringement Claim would not have arisen but for such use, (D) based on your use of a superseded or altered release of any code, document, service, product or deliverable after Licensor has recommended discontinuation, if the Infringement Claim would have been avoided by use of a current or unaltered release made available to you, (E) if you are in material breach of the Agreement or (F) based on or relating to any instructions, designs, specifications or any other information provided by you or by any person on your behalf. If Licensor receives information about an infringement or misappropriation Claim related to the Software, Licensor may in its discretion and at no cost to you: (I) modify the Software or any portion thereof so that they no longer infringe or misappropriate, (II) obtain a license for your continued use of the Software in accordance with the Agreement or (III) terminate your access to the impacted portion of the Software upon ninety (90) days’ written notice and refund to you any prepaid fees related thereto. The obligations in this Section 8 survive the termination of the Agreement.
- Notices; Modifications. From time to time, Licensor may post legal notices to the Software. You shall not remove these notices, or any additional information contained along with any such notice. The Software may contain references to trademarks, copyrighted materials, technologies, products, data, processes and software and other proprietary rights of Licensor, Third Party Data Providers (hereinafter defined), or other Persons. Except as necessary for your access to and use of the Software as contemplated by the Agreement, no license to or right in any such trademarks, copyrighted materials, technologies, products, data, processes, software or other proprietary rights of Licensor or any Third Party Data Provider is granted to or conferred upon you.Licensor may modify these Terms or any of the policies or guidelines governing the Software, at any time and in its sole discretion, by posting the modified Terms, policies, or guidelines on the Software. Licensor will not be required to provide notice of any such modification directly to you. The modifications shall be effective upon such posting (unless some other date is specified in the posting, in which case that date shall be deemed the effective date for the modifications). You agree to review these Terms periodically so that you are aware of any modifications. Your use of the Software indicates your full acceptance of the Agreement in its then-current each time you use the Software. You agree that the notice and modification provisions provided in the Agreement are reasonable. You may not modify these Terms or any of the policies or guidelines governing the Software without Licensor’s express prior written consent.
Licensor may restrict the availability of the Software or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of its servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Software. Licensor may, but shall not be required to, improve, enhance and modify the Software and remove, modify, or add features and functionality thereon from time to time in its sole discretion. Licensor reserves the right, in its sole discretion, to make unscheduled deployments of updates, enhancements or such other changes to the Software at any time that Licensor deems necessary or otherwise desirable, in each case to the full extent permitted by Applicable Law and without notice or liability to you.
- Software Rules. You agree that while using the Software you will comply with the following rules (in addition to the other rules set forth elsewhere on the Software or in the Agreement):
- You will not violate any Applicable Law in connection with your access to or use of the Software.
- Your use of the Software and Content as permitted hereunder shall be solely for your internal business use in accordance with, and subject to the terms of, the Agreement.
- You agree that the Software is only intended for manual use, and you will not access the Software through the use of any “bots” or other software applications that may be used to perform automated tasks or scripts, including accessing or in any way using the Software.
- You will not submit or transmit to, through or in connection with the Software: (i) any unlawful, harassing, libelous, privacy invading, abusive, threatening, defamatory, vulgar, racist, or otherwise harmful or objectionable Submission or Content of any kind (including, but not limited to, any Content that depicts nudity, sexual conduct or violence); (ii) any Submission or Content that infringes upon any third party right (including, but not limited to, any copyright, trademark, right of publicity or privacy, or any other intellectual property or similar rights, as well as rights associated with any recognizable name, voice, person, or image (collectively “Third Party IP”)); (iii) any advertisements or other promotional materials or information for purposes of advertising or promoting any products or services; (iv) any virus, Trojan horse, worm, time bomb, trap door, disabling code, malware, or other computer programming device the purpose of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, otherwise harm, misdirect or impede in any manner any computer, software, hardware, firmware, system, or network; (v) any political or promotional opinions, in each case, for the purpose of promoting those opinions; or (vi) any Submission or Content which may constitute or encourage conduct that is fraudulent, a criminal offense or civil wrong or otherwise violates any Applicable Law
- While accessing or using the Software, you will not impersonate any Person, make any false statement regarding any Person (including but not limited to, any Person’s employment, agency or affiliation with any other Person), or create false identities for any reason.
- You will not interfere with or disrupt Licensor’s or any other User’s access to or use of the Software.
- You will not take any action that imposes (or may impose, as determined by Licensor in its sole discretion) an unreasonable or disproportionately large load on Licensor’s servers or other infrastructure underlying the Software, and you will not use the Software in any way that causes (or is likely to cause, as determined by Licensor in its sole discretion) the Software or access to or use of it to be interrupted, interfered with, damaged or impaired in any way, including but not limited to any use of the Software that in any way interferes with or disrupts servers or networks used by Licensor to provide the Software or used by other Users to access the Software or violates any third party regulations, policies or procedures of such servers or networks.
- You will not “scrape” or otherwise use any data mining, robots, or similar data gathering or extraction methods.
- You will not publish or disclose to third parties any information regarding the Software, any Content, or your use thereof.
- You will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithm pertaining to the Software or any software, proprietary documentation or data related to the Software.
- You will not modify or alter any part of the Software or any Content, and you will not circumvent, disable or otherwise interfere with any security-related feature of the Software or any system resources, services or networks connected to or accessible through the Software.
- You will not modify, alter, tamper with, translate, repair or create derivative works based on the Software or any Content.
- You will not rent, lease, distribute, sell, resell, assign, or otherwise transfer your rights to use the Software.
- You will not (i) use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (ii) sell, lend, rent, resell, lease, sublicense or otherwise transfer to any third party or commercialize the Software (or any part thereof or Content therein) or any of the rights granted to you by Licensor in connection therewith; (iii) access or use the Software in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; or (iv) download or copy any Content from the Software for your own benefit or for the benefit of another merchant, website or other Person, except as contemplated by the Agreement.
- You will not use the Software in automatic, semi-automatic or manual tools designed to create virus signatures, virus detection routines, or any other data or code for detecting malicious code or data.
- You will not use, modify, duplicate, print, transmit or distribute in any manner any Content or any other reports, research, materials, data or other information viewed, accessed or provided on the Software except as expressly permitted by the Agreement, solely for your internal business use in accordance with, and subject to the terms of, the Agreement.
- You will not attempt to gain access to the Software, other Users’ accounts, Licensor’s computer systems or networks connected to the Software through hacking, password mining or any other similar means.
- You will not use any meta tags or any other “hidden text” utilizing any of Licensor’s names or trademarks without Licensor’s express written consent.
- You will not use the Software in connection with the operation of nuclear facilities, aircraft navigation, communications systems, medical devices, air traffic control devices, real time control systems or other situations in which the failure of the Software could lead to death, personal injury or physical property or environmental damage.
- Your Submissions will not contain any disabling mechanism or protection feature designed to prevent its use by Licensor in the manner contemplated in the Agreement, and all such Submissions will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Software or any other hardware or computer system or software, or which would otherwise render inaccessible or impair the use of any of the same in any way.
- Your Submissions have not been obtained, created or submitted in violation of any Applicable Law.
- Your Submissions are not subject to any terms or condition that might be breached by such Submission being submitted to the Software or used as contemplated by the Agreement.
- If after you submit any Submission to the Software, you receive any notice or otherwise learn in any way that any of the representations made by you in above were not accurate, complete and not misleading in all material respects or no longer are accurate, complete and not misleading in all material respects or of any claim by a third party to the effect of the foregoing, you will promptly provide Licensor with written notice all relevant facts regarding the same and if appropriate, remove the Submission from the Software.
You further agree not to cause, encourage or permit any third party to do any of the foregoing on your behalf or in any way with your assistance or collaboration, including without limitation by providing other Persons with your Access Methods or by otherwise authorizing any third party to access or use the Software.
- Applicable Law. The Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of New York applicable to agreements made and wholly performed therein. You hereby consent to the exclusive jurisdiction of the Southern District of New York or any New York State Court located in the Borough of Manhattan, New York, in all disputes arising from or relating to the Agreement or your access to or use of the Software. You hereby waive any objection to venue or inconvenient forum laid therein.
- Licensor controls and operates the Software from its headquarters in the United States of America, and Licensor makes no claim that the Software may be lawfully used outside of the United States. Use of the Software may not be legal by certain persons or in certain countries. If you access the Software from outside of the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction. You may not use, export, re-export, import or transfer the Software (or any portion thereof or any rights thereto granted by Licensor) except as authorized by the applicable laws of the United States, the laws of the jurisdiction in which you gained access to the Software, and any other applicable law, rule, regulation, administrative, judicial, or governmental order, or legal process (including, without limitation, any requirements of securities exchanges and self-regulatory organizations, collectively, “Applicable Laws”). In particular, but without limitation, neither the Software nor any portion thereof or any rights thereto may be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By accessing and using the Software, you represent and warrant that you are not located in any such country or on any such list. Licensor reserves the right to limit, in its sole discretion, the availability of the Software to any Person, geographic area, or jurisdiction, at any time.
- Joint Venture. Nothing in the Agreement shall constitute or create a joint venture, partnership, or any other similar arrangement between you and Licensor. Neither party is authorized to act as agent or bind the other party except as expressly stated in the Agreement.
- Assignability. The Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. Licensor may assign the Agreement in whole or in part at any time without your consent. You may not assign the Agreement or delegate any of your obligations hereunder. Any purported assignment of the Agreement in violation of its terms shall be void.
- Notice to Licensor. Any notice to Licensor that is required or permitted by the Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to firstname.lastname@example.org or when delivered in person or mailed by first class, registered or certified mail, postage prepaid, to 555 Corporate Dr. Kalispell, MT 59901 Attn: Legal Department.
- No Waiver of Rights. Failure of either party to enforce any of its rights under the Agreement will not act as a waiver of such rights.
- Enforceability. If any portion of any provision of the Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of the Agreement shall remain in full force and effect.
- Headings. Headings used in the Agreement are for convenience only. They do not constitute part of the Agreement.