TERMS AND CONDITIONS OF USE
Last Modified: March 10, 2009
Provider reserves the right, at Provider’s discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Provider Site. Please check these Terms and any Policies periodically for changes. Your continued use of the Provider Site after the posting of changes constitutes your binding acceptance of such changes. Except as stated elsewhere, such amended Terms or fees will automatically be effective thirty (30) days after they are initially posted on the Provider Site.
1. Ownership of Materials; Limited License
The data and materials on the Provider Site, except the Third Party Content (as defined below), including, without limitation, the text, graphics, interactive features, logos, photos, audiovisual content, and software of the Provider Site (collectively, the “Materials”) are the intellectual property of Provider, its licensors and its suppliers. The Materials are protected by copyright, trade dress, patent, trademark and other laws, international conventions and proprietary rights and all ownership rights to the Materials remain with Provider, its licensors or its suppliers, as the case may be. All trademarks, service marks, and trade names are proprietary to Provider or its affiliates and/or third party licensors. Except as expressly authorized by Provider, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make use of the Materials. Provider reserves all rights not expressly granted in and to the Provider Site and the Materials.
Subject to your compliance with the terms and conditions set out in these Terms, Provider hereby grants you a personal, limited, non-exclusive, non-transferable, freely revocable license to use any programs, services, or features of the Provider Site currently made available by Provider.
2. Third Party Content
The Provider Site may permit You to view, display, perform, and use the outside content that is made available on the Provider Site technology platform, which may include but not be limited to data, text, audiovisual content, data sets, and images (collectively, “Third Party Content”).
You understand that when using the Provider Site, you may be exposed to Third Party Content from a variety of sources, and that Provider is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Third Party Content or other content. You further understand and acknowledge that you may be exposed to Third Party Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Provider with respect thereto. Provider does not endorse any Third Party Content or any opinion, recommendation, or advice expressed therein, and Provider expressly disclaims any and all liability in connection with the Third Party Content. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST PROVIDER WITH RESPECT THERETO AND AGREE TO INDEMNIFY AND HOLD PROVIDER, ITS OWNERS/OPERATORS, AFFILIATES, SUPPLIERS, AND/OR LICENSORS HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED YOUR USE OF THE PROVIDER SITE.
3. Prohibited Uses
YOU HEREBY REPRESENT AND WARRANT THAT YOU WILL NOT:
- USE THE PROVIDER SITE IN ANY MANNER THAT VIOLATES ANY LAW, REGULATION, TREATY OR THIRD PARTY RIGHT (INCLUDING, WITHOUT LIMITATION, TRADE SECRET, INTELLECTUAL PROPERTY, PRIVACY, TERMS OF SERVICE OR PUBLICITY RIGHTS);
- PUBLISH FALSEHOODS OR MISREPRESENTATIONS THAT COULD DAMAGE PROVIDER OR ANY THIRD PARTY;
- IMPERSONATE ANOTHER PERSON OR ENTITY, WHETHER ACTUAL OR FICTITIOUS, FALSELY CLAIM AN AFFILIATION WITH ANY PERSON OR ENTITY, MISREPRESENT THE SOURCE, IDENTITY, OR CONTENT OF INFORMATION TRANSMITTED VIA THE PROVIDER SITE, OR PERFORM ANY OTHER SIMILAR FRAUDULENT ACTIVITY;
- USE THE PROVIDER SITE FOR ANY PURPOSE OTHER THAN TO ACCESS THE PROVIDER SITE AS SUCH SERVICES ARE OFFERED BY PROVIDER;
- CIRCUMVENT, DISABLE OR OTHERWISE INTERFERE WITH SECURITY-RELATED FEATURES OF THE PROVIDER SITE;
- RENT, LEASE, LOAN, SELL, RESELL, SUBLICENSE, DISTRBUTE OR OTHEWISE TRANSFER THE LICENSES GRANTED HEREIN OR ANY MATERIALS. FOR CLARITY, YOU MAY NOT ASSIGN, SELL, OR TRANSFER ANY ACCOUNT THAT YOU CREATE OR MAINTAIN OR ANY PORTION THEREOF.
- DELETE INDICATIONS OR NOTICES REGARDING THE COPYRIGHT OR OTHER PROPRIETARY RIGHTS ON THE PROVIDER SITE OR ANY THIRD PARTY CONTENT;
- MAKE UNSOLICITED OFFERS, ADVERTISEMENTS, PROPOSALS, OR SEND JUNK MAIL OR SPAM TO OTHER USERS OF THE PROVIDER SITE. THIS INCLUDES, BUT IS NOT LIMITED TO, UNSOLICITED ADVERTISING, PROMOTIONAL MATERIALS, OR OTHER SOLICITATION MATERIAL, BULK MAILING OF COMMERCIAL ADVERTISING, CHAIN MAIL, INFORMATIONAL ANNOUNCEMENTS, CHARITY REQUESTS, AND PETITIONS FOR SIGNATURES;
- USE THE PROVIDER SITE FOR ANY ILLEGAL PURPOSE, OR IN VIOLATION OF ANY LOCAL, STATE, NATIONAL, OR INTERNATIONAL LAW, INCLUDING, WITHOUT LIMITATION, LAWS GOVERNING INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS, AND DATA PROTECTION AND PRIVACY;
- DEFAME, HARASS, ABUSE, THREATEN OR DEFRAUD USERS OF THE PROVIDER SITE, OR COLLECT, OR ATTEMPT TO COLLECT, PERSONAL INFORMATION ABOUT USERS OR THIRD PARTIES WITHOUT THEIR CONSENT;
- REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE ATTEMPT TO DISCOVER THE SOURCE CODE OF THE PROVIDER SITE OR ANY PART THEREOF, EXCEPT AND ONLY TO THE EXTENT THAT SUCH ACTIVITY IS EXPRESSLY PERMITTED BY APPLICABLE LAW NOTWITHSTANDING THIS LIMITATION;
- EXCEPT AS AUTHORIZED BY PROVIDER, MODIFY, ADAPT, TRANSLATE OR CREATE DERIVATIVE WORKS BASED UPON THE PROVIDER SITE OR ANY PART THEREOF, EXCEPT AND ONLY TO THE EXTENT THAT SUCH ACTIVITY IS EXPRESSLY PERMITTED BY APPLICABLE LAW NOTWITHSTANDING THIS LIMITATION;
- INTENTIONALLY INTERFERE WITH OR DAMAGE OPERATION OF THE PROVIDER SITE, OR OTHERWISE DISSEMINATING VIRUSES, ADWARE, SPYWARE, WORMS, OR OTHER MALICIOUS CODE;
- TAKE ANY ACTION THAT IMPOSES OR MAY IMPOSE (IN PROVIDER’S SOLE DISCRETION) AN UNREASONABLE OR DISPROPORTIONATELY LARGE LOAD ON PROVIDER’S INFRASTRUCTURE;
- INTERFERE OR ATTEMPT TO INTERFERE WITH THE PROPER WORKINGS OF THE PROVIDER SITE OR ANY ACTIVITIES CONDUCTED ON THE PROVIDER SITE; OR
- BYPASS ROBOT EXCLUSION HEADERS OR OTHER MEASURES PROVIDER MAY USE TO PREVENT UNAUTHORIZED ACCESS TO THE PROVIDER SITE.
You agree that Provider, in its sole discretion, for any or no reason, and without penalty, may suspend or terminate any access, account, membership or affiliation (or any part thereof) you may have with Provider or your use of the Provider Site. Provider may also in its sole discretion and at any time discontinue providing access to the Provider Site, or any part thereof (including without limitation all Materials), with or without notice. You agree that any termination or suspension of your access to the Provider Site or any account you may have or portion thereof may be effected without prior notice, and you agree that Provider will not be liable to you or any third party for any such termination. As discussed herein, Provider does not permit copyright infringing activities on the Provider Site, and shall be permitted to terminate access to the Provider Site, and remove any Third Party Content, in its sole discretion.
The Provider Site may permit Users to link, upload and/or display content using the Provider Site technology platform, which may include but not be limited to audiovisual files, images, text (collectively, “User Content”).
You understand that when using the Provider Site, you may be exposed to User Content from other sources, and that Provider is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content or other content. You further understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Provider with respect thereto. Provider does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and Provider expressly disclaims any and all liability in connection with the User Content. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST PROVIDER WITH RESPECT THERETO AND AGREE TO INDEMNIFY AND HOLD PROVIDER, ITS OWNERS/OPERATORS, AFFILIATES, SUPPLIERS, AND/OR LICENSORS HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR CONTENT AND END USER CONTENT AND USE OF THE PROVIDER SITE.
Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2, 3, 4, 5, and 7-20.
5. Copyright infringement notification
If you are a copyright owner or an agent thereof (the “Copyright Owner”) and believe that any content on the Provider Site infringes your copyrights, you may submit a notification pursuant to Title 17, United States Code, Section 512(c)(3), the Digital Millennium Copyright Act (“DMCA”). This notification of claimed infringement must be a written communication provided to the designated agent of Provider that includes the following information:
- A physical or electronic signature of a person authorized to act on behalf of the Copyright Owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Provider to locate the material.
- Information reasonably sufficient to permit Provider to contact the Copyright Owner, such as an address, telephone number, and, if available, an electronic mail address at which the Copyright Owner may be contacted.
- A statement that the Copyright Owner has a good faith belief that use of the material in the manner complained of is not authorized by the Copyright Owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the Copyright Owner of an exclusive right that is allegedly infringed.
Provider’s registered designated copyright agent to receive notifications of claimed infringement is:
- Neonova, Copyright Agent
Neonova Network Service Inc.
1000 Perimeter Park Drive, Suite K
Morrisville, NC 27560
Fax: (919) 460-0426
Only DMCA notices should go to the designated copyright agent; any other comments, requests, or other communications should be directed to Provider customer service at Neonova Network Services Inc., Customer Service, 1000 Perimeter Park Drive, Suite K, Morrisville, NC 27560 and email: email@example.com. Under applicable law, any notification of claimed infringement that does not comply with the DMCA’s requirements is invalid.
If you receive notice from Provider that your content has been taken down pursuant to a notification of alleged infringement and believe that this takedown is improper or incorrect, you may provide Provider with a counter notification. To be valid, a counter notification must be a written communication provided to Provider’s designated agent as mentioned in section 5.2 that includes substantially the following:
- Your physical or electronic signature./li>
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled./li>
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled./li>
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, the jurisdiction of the Federal District Court for the Northern District of California, and that you will accept service of process from the Copyright Owner who provided notification as mentioned in section 5.1 or an agent of such person./li>
6. Third Party Websites
CONTENT ON THE PROVIDER SITE, INCLUDING WITHOUT LIMITATION, MATERIALS, AND THIRD PARTY CONTENT, ARE PROVIDED ON AN “AS IS” BASIS WITH NO WARRANTY.
PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, AND SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON RELATING IN ANY WAY TO THE PROVIDER SITE AND DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, AND SUPPLIERS DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (I) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (III) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE PROVIDER SITE, OR ANY PART THEREOF; (IV) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE PROVIDER SITE; (V) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA ON THE PROVIDER SITE; AND (VI) OTHER WARRANTIES RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS OF PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, OR SUPPLIERS .
FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PROVIDER MAKES NO WARRANTY THAT THE PROVIDER SITE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. THE PROVIDER SITE MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PROVIDER OR THROUGH THE PROVIDER SITE WILL CREATE ANY WARRANTY. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE PROVIDER SITE (INCLUDING RSS FEEDS OR THROUGH API FUNCTIONALITY) OR ANY THIRD-PARTY SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, PROVIDER’S, AND ITS OFFICERS’, DIRECTORS’, EMPLOYEES’, AFFILIATES’, AGENTS’, LICENSORS’, AND SUPPLIERS’ LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9. Limitation of Liability
IN NO EVENT WILL PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS PROVIDER SITE BE LIABLE IN ANY MANNER WHATSOEVER FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF: (I) THIS PROVIDER SITE, YOUR ACCESS, USE OR INABILITY TO USE THE PROVIDER SITE; (II) ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE (INCLUDING LOST PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION, AND DAMAGES THAT RESULT FROM INACCURACY OF ANY INFORMATION OR MATERIALS AVAILABLE ON OR THROUGH THE PROVIDER SITE, OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF, THE PROVIDER SITE OR ANY INFORMATION OR MATERIALS AVAILABLE ON OR THROUGH THE PROVIDER SITE); (III) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE PROVIDER SITE, (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR UNAUTHORIZED ACCESS TO, OR USE OR DISCLOSURE OF, ANY AND ALL PERSONALLY IDENTIFIABLE INFORMATION STORED THEREIN, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE PROVIDER SITE BY ANY THIRD PARTY.
IN NO EVENT WILL PROVIDER OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSORS’, OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE PROVIDER SITE OR YOUR INTERACTION WITH OTHER PROVIDER SITE MEMBERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO PROVIDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
PROVIDER RESERVES THE RIGHT TO ALTER, REMOVE OR DISCONTINUE ANY PORTION OF THE PROVIDER SITE OR THE CONTENT ON THE PROVIDER SITE OR TO SUSPEND OR TERMINATE YOUR USE IN ANY WAY, AT ANY TIME, FOR ANY REASON, WITHOUT PRIOR NOTIFICATION, AND WILL NOT BE LIABLE IN ANY WAY FOR POSSIBLE CONSEQUENCES OF SUCH CHANGES.
THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SERVICES OR OTHERWISE BY THIRD PARTIES OTHER THAN PROVIDER AND RECEIVED THROUGH OR ADVERTISED ON THE PROVIDER SITE OR RECEIVED THROUGH ANY THIRD PARTY SERVICES OR ANY OTHER THIRD-PARTY SITES OR SERVICES REFERENCED ON THE PROVIDER SITE.
YOU SPECIFICALLY ACKNOWLEDGE THAT PROVIDER SHALL NOT BE LIABLE FOR THIRD PARTY CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, PROVIDER’S, ITS OFFICERS’, DIRECTORS’, EMPLOYEES’, AFFILIATES’, AGENTS’, LICENSORS’ AND SUPPLIERS’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless Provider, its officers, directors, employees, affiliates, agents, licensors, suppliers, successors, assigns, and their past and present officers, directors and employees, representatives and agents from and against any losses, claims, damages, liabilities, including legal fees and expenses, arising out of:
- your use or misuse of or access to the Provider Site and any Materials made available on or through the Provider Site; or
- your violation of any law, regulation or third party right, including without limitation any copyright, property, or privacy right.
Provider reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Provider, and you agree to cooperate with Provider’ defense of these claims.
11. Release for disputes between members.
Provider does not control the actions of its Users. If you have a dispute with one or more Users, you release Provider (and Provider’s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
13. Waiver and Severability
15. Choice of Law and Forum
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