Date of Last Revision: December 18, 2013
PLEASE NOTE THAT BY ACCESSING OR USING ANY PART OF THE WEB SITE OR THE SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE DISPUTE RESOLUTION PROCEDURE, WAIVERS OF RIGHTS, LIMITATION OF LIABILITY, AND INDEMNIFICATION. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE WEB SITE OR THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ANY TIME. YOUR CONTINUED USE OF THE WEB SITE AND/OR THE SERVICES CONSTITUTES ASSENT TO ANY NEW PROVISIONS OF THIS AGREEMENT THAT MAY BE POSTED ON THE WEB SITE IN THE FUTURE.
1. Using The Web Site
Subject to your strict compliance with this Agreement, we grant you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to download, display, view, and use a single copy of the materials appearing on The Web Site (excluding source and object code) on any single computer (or other device you use to access The Web Site) for your personal, non-commercial use only; provided that you: (a) keep intact all trademark, copyright and other proprietary notices; (b) do not use the materials in a manner that suggests an association with any of our products, services or brands; (c) make no modifications to the materials; (d) do not allow or assist any third party: (i) to copy or adapt the source or object code of The Web Site’s software or programming code; or (ii) reverse engineer, decompile, reverse assemble, modify or attempt to discover any source code that The Web Site create to generate their web pages or any software or other products or processes accessible through the Site; and (e) do not insert any code or product to manipulate the materials in any way.
2. User Conduct
In, or as a result of, your use of The Web Site and the Services, you may not: (i) infringe any patent, trademark, trade secret, copyright, right of publicity, (ii) disrupt or interfere with the security or use of the Services, The Web Site, or any web sites linked to The Web Site; (iii) interfere with or damage The Web Site or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology; (iv) attempt to obtain unauthorized access to The Web Site or portions of The Web Site that are restricted from the access granted to you; (v) engage, directly or indirectly, in transmission of spam, chain letters, junk mail or any other type of unsolicited solicitation;(vi) use any meta tags or any other hidden text utilizing our name, trademarks, or product names in any manner and in any place; (vii) advertise, offer to sell, or sell any goods or services; (viii) engage in any activity that interferes with any third party’s ability to use or enjoy The Web Site or Services; (ix) assist any third party in engaging in any activity prohibited by this Agreement.
4. Intellectual Property Rights
a. Copyright. All materials on The Web Site and used in the Services, including without limitation, designs, text, graphics, information, data, images, audio, video, applications, software (including source code and object code), metadata, compilations, graphical user interfaces, other files, and the selection, arrangement and organization thereof are either owned by us or are the property of our suppliers or licensors. No Web Site’s content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without our prior written permission. Provided that you are eligible to use The Web Site, you are granted a limited license to access and use The Web Site and the Services and to download or print a copy of any portion of The Web Site’s content to which you have properly gained access solely for your personal, non-commercial use, provided that you do not alter or delete any trademark, copyright, or other proprietary notices. Your license is subject to this Agreement and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of The Web Site or the Services beyond the scope of the license granted above is prohibited.
b. Trademarks. Trademarks and service marks that appear on The Web Site, including but not limited to product names, tag lines, logos, page headers, custom graphics, button icons, and scripts shown on The Web Site are our trademarks, service marks, or trade dress. Any use by you of such trademarks, service marks, and trade dress is for our sole benefit and all goodwill generated by such use will inure to us. If you refer to our trademarks or logos, you must include appropriate attribution to us. All other trademarks, trade names and the like that appear on The Web Site or in the Services are the property of their respective owners. You may not use (including as part of a domain name) any of these trademarks, trade dress, or trade names without express permission.
c. Ownership and Use. We retain ownership of our intellectual property rights and you do not obtain any rights therein by virtue of this Agreement or otherwise. You have no right to use, copy, display, perform, publish, create derivative works from, create new works or abstracts from, distribute, have distributed, transmit, or sublicense materials or content available on The Web Site or through the Services, except as expressly set forth in this Agreement. Notwithstanding the foregoing, you may use the content and materials on our Web Site and available through our Services in the normal course of your use of The Web Site and the Services. You may not use any third-party intellectual property without the express written permission of the applicable third party, except as permitted by law.
5. Linking and Framing
a. Your Rights. Subject to our right to prohibit linking for any or no reason (even if the linking were to comply with the requirements that follow), you may create a plain text hyperlink to the home pages of our Web Site (and only to the home pages) provided that: (i) neither you nor the link portrays us or any of our products and services in a false or disparaging manner or suggests sponsorship, affiliation or endorsement by or with us; and (ii) The Web Site that you are linking to our Web Sites is owned by you. We may revoke this permission at any time for any reason upon notice to you. You may not “frame,” inline link, or similarly display any of our content or property, including, without limitation, The Web Site. You may not use any of our trademarks as part of the link without express written permission.
b. Third Parties. There may be links from The Web Site to third party web sites that we do not control or endorse. Accessing those third party web sites requires you to leave The Web Site. You agree that we are not responsible or liable for any of those third party web sites, including, without limitation, their products, services, actions, content, policies, promotions, and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their web sites. Your interactions with others found on or through The Web Site, including, without limitation, purchases of products or services, and any terms, conditions, warranties and representations associated with any such interactions, are solely between you and those third parties.
6. Representations and Warranties
a. By Each Party. Each party represents and warrants to the other party: (i) that it has the full power and authority to enter into and perform its obligations under this Agreement; (ii) the assent to and performance by it of its obligations under this Agreement do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound, or any applicable laws, regulations or rules; and (iii) this Agreement constitutes legal, valid and binding obligations of the parties executing or assenting to this Agreement, enforceable in accordance with its terms and conditions.
b. By You. You represent and warrant to us Company that: (i) you will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary right of any third party in your use of The Web Site or the Services; (ii) you will comply with all applicable laws, rules and regulations in your use of the Services and The Web Site, including this Agreement; (iii) you are at least eighteen (18) years of age and you have the legal right and capacity to enter into this Agreement in your jurisdiction and to comply with this Agreement; (iv) all information you provide to us is true, accurate, complete and current.
You agree to hold us and our parents, subsidiaries, and affiliates, and each of their employees, directors, officers, managers, members, shareholders, agents, representatives, attorneys, vendors, and contractors (collectively, the “Indemnified Parties”) harmless from any damage, loss, cost or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach of any provision of this Agreement by you or; (ii) arising from, related to, or connected with your use of The Web Site, the Services, or information transmitted through your computer or other device used to access the Site, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person. If you are obligated to provide indemnification pursuant to this provision, we may, in our sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle compromise or in any other manner dispose of any Claim without our consent.
8. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS
a. DISCLAIMER OF WARRANTIES. WE PROVIDES THE WEB SITE AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE, AND OUR PARENTS, SUBSIDIARIES, AND AFFILIATES, AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, MANAGERS, MEMBERS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, ATTORNEYS, VENDORS, AND CONTRACTORS (COLLECTIVELY, “THE PARTY” ) DO NOT REPRESENT OR WARRANT THAT THE WEB SITE OR SERVICES OR THEIR USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. THE PARTY MAKE NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT.
b. THIRD PARTY SERVICES. THE THIRD-PARTY LINKS, SERVICES, GOODS, RESOURCES AND INFORMATION THAT WE PROVIDE ON OR MAKE AVAILABLE THROUGH THE WEB SITE, INCLUDING, WITHOUT LIMITATION, THOSE AVAILABLE THROUGH THIRD-PARTY ADVERTISEMENTS, ARE NOT CONTROLLED BY US. ACCORDINGLY, WE MAKE NO WARRANTIES REGARDING SUCH THIRD-PARTY SERVICES, RESOURCES, AND INFORMATION, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT, AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH THIRD-PARTY SERVICES, RESOURCES OR INFORMATION.
c. EXCLUSION OF DAMAGES. WE WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE WEB SITE OR SERVICES, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
d. LIMITATION OF LIABILITY. IN NO EVENT WILL OUR LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE WEB SITE, OR THE SERVICES EXCEED $500.
9. Force Majeure
We will not be liable for failing to perform under this Agreement by the occurrence of any event beyond our reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to perform, fire, terrorism, natural disaster or war.
All disputes arising out of or relating to this Agreement (including its formation, performance or alleged breach) or your use of The Web Site or the Services will be exclusively resolved under confidential binding arbitration held in New York, NY before and in accordance with the Rules of the American Arbitration Association. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. Notwithstanding the foregoing, we will have the right to seek injunctive or other equitable relief in state or federal court located in New York, NY to enforce these terms or to prevent an infringement of a third party’s rights. In the event equitable relief is sought, each party hereby irrevocably submits to the personal jurisdiction of such court.
11. Changes to The Web Site or Service
We may, in our sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of The Web Site or the Services, temporarily or permanently, at any time without notice to you, and we will not be liable for doing so.
12. Notices and Electronic Communications
All notices required or permitted to be given under this Agreement will be in writing and delivered to the other party by any of the following methods: (i) hand delivery, (ii) certified U.S. mail, return receipt requested, postage prepaid, (iii) overnight courier, or (iv) electronic mail. If we provide notice to you, we will use the contact information provided by you to us. All notices will be deemed received as follows: (i) if by hand-delivery, on the date of delivery, (ii) if by delivery by U.S. mail, on the date of receipt appearing on a return receipt card, (iii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iv) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. You agree that any notice that you receive from us electronically satisfies any legal requirement that such communications be in writing.
You agree that any suggestions, ideas, product uses and potential uses, product ideas, feedback or other information about The Web Site, the Service, or our products or services (“Suggestions”), provided by you to us are non-confidential to you and shall become by virtue of the transmission to us, to The Web Site, or to the Service our sole property. We will own all of the rights, exclusively, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Suggestions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
14. Limitation of Actions
You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of The Web Site or Services, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
This Agreement contains the entire understanding between you and us regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between us, whether oral in writing, regarding its subject matter.
16. Territorial Issues and Restrictions
The materials on The Web Site are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be violate any law or regulation or which would subject us to any registration requirement. Anyone using or accessing the Site from other locations is responsible for compliance with United States’ and local laws regarding online conduct and acceptable content. Software related to or made available by The Web Site may be subject to United States export controls; therefore, no software from The Web Site may be downloaded, exported or re-exported: (i) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to The Web Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
17. Additional Terms
This Agreement is binding upon each party hereto and its successors and permitted assigns, and shall be governed by and construed in accordance with the laws of the State of New York without reference to the conflict of law principles thereof. We both agree that all actions or proceedings arising in connection with this Agreement shall be arbitrated in accordance with the Arbitration provision of this Agreement exclusively in New York, NY, or in the event the matter is for any reason litigated, tried and litigated exclusively in the state or federal courts located in New York, NY. This choice of venue (for both arbitration and litigation) is intended by the both of us to be mandatory and not permissive in nature, and to preclude the possibility of arbitration or litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. We both waive any right either of us may have to assert the doctrine of forum non conveniens or similar doctrine or to object to the venue with respect to any proceeding brought in accordance with this Section. This Agreement and all of your rights and obligations under it is not assignable or transferable by you without our prior written consent. No failure or delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. The invalidity or unenforceability of any provision of this Agreement will not invalidate any other provision of this Agreement, all of which will remain in full force and effect. If you reside in or are subject to the laws of a jurisdiction anywhere in the world whose common, statutory, regulatory, or codified law would void this Agreement in whole or in any essential part (the essential parts being at least, but not only, the exclusive venue and exclusive remedy provisions, and the warranty disclaimers), or which make accessing The Web Site or using the Services illegal, you do so entirely at your own risk.