Version 1.0 Effective date: November 1, 2012 Last updated date: November 1, 2012
WELCOME TO THE ZILINO WEBSITE. ZILINO IS A WEB SERVICE THAT PROVIDES SPACE FOR ORGANIZATIONS IN THE PUBLIC, PRIVATE AND NONPROFIT SECTORS (EACH A "PROJECT ORGANIZER") TO INVITE THEIR CONSTITUENTS (EACH A "PARTICIPANT") TO PARTICIPATE IN ONE OR MORE ONLINE COMMUNITIES (EACH, A "COMMUNITY") WITH OTHER PARTICIPANTS TO ENGAGE IN DELIBERATIVE ONLINE FORUMS FOR COLLABORATIVE PROBLEM-SOLVING AND DECISION MAKING AND OTHER PARTICIPATORY PROCESSES.
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF INTELLITICS, INC. OR ITS AFFILIATES (“COMPANY”) WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY THE COMPANY, CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
IF YOU ARE A PROJECT ORGANIZER THAT HAS SUBSCRIBED TO A SERVICE (A “SUBSCRIPTION SERVICE”) FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT COMPANY’S THEN CURRENT FEE FOR SUCH SERVICE UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 8 BELOW.
THE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY THE COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, the Company will make a new copy of the Terms available at the Website. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered to use any of our Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Website or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing users of the Website (“Users”), provided that any material changes shall be effective for Users who have a registered account on the Website (“Registered Users”) upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users. The Company may require you to provide consent to the updated Terms in a specified manner before further use of the Website or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Use of the Services and Company Properties.
The Services and the information and content available on the Website and in the Services (collectively, the “Company Properties”) are protected by copyright laws throughout the world.
1.1 Project Organizers. Subject to the Terms, the Company grants each Project Organizer a limited license to use the Company Properties for the sole purpose of hosting Communities to engage in discourse on topics selected and moderated by the Project Organizer.
1.2. Participants. Subject to the Terms, the Company grants each Registered Participant a limited license to use the Company Properties to participate, at no cost to the Registered Participant, in Communities to which the Registered Participant has been invited.
1.3 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Company Properties or any portion of the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of the Company; (c) you shall not use any metatags or other “hidden text” using the Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from public portions of the Website for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Company Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Company Properties. Any future release, update or other addition to the Company Properties shall be subject to the Terms. The Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Company Properties terminates the licenses granted by the Company pursuant to the Terms.
1.4 Anti-Spam Policy. Registered Users may only use our Services in connection with e-mail lists for which recipients have voluntarily registered. Using our Services to send an e-mail to an address that you obtain without the consent of such addressee is a violation of the Terms. Registered Users may not send mail under any company or organization name other than their own and may not send mail with fraudulent header or source information.
1.5 Use of the Website by Governmental Entities. In many instances, the Project Organizer will be a governmental entity. In such instances, any information, data, text, software, music, sound, photographs, graphics, video, messages and/or other materials (“Content”) that you contribute to Communities sponsored by that Project Organizer may be considered public information or public records under applicable local, state or federal laws. To the extent that any Content you contribute to Communities sponsored by the Project Organizer, including any personally identifiable information, is considered a public record or as otherwise belonging to a governmental entity and, therefore, subject to certain local, state or federal disclosure laws, such applicable laws will govern the use and disclosure of such Content.
1.6 Third-Party Materials. As a part of the Company Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for the Company to monitor such materials and that you access these materials at your own risk.
2.1 Registering your Account. Every Project Organizer and Participant is required to become a Registered User.
2.2. Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by our registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Company Properties under the laws of the United States, your place of residence, or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Company Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Company immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Company Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. The Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights. You agree not to create an Account or use the Company Properties if you have been previously removed by the Company, or if you have been previously banned from any of the Company Properties.
2.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Company Properties. You are solely responsible for any fees, including Internet connection, that you incur when accessing the Company Properties.
3. Responsibility for Content.
3.1 Types of Content. You acknowledge that all Content, including the Company Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Company Properties (“Your Content”), and other Users of the Company Properties, and not the Company, are similarly responsible for all Content they Make Available through the Company Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that the Company does not monitor, censor or edit the content of messages sent to or by Users. Users alone are responsible for the content of their messages and the consequences of any such messages. The Company does not assume any responsibility for the messages or other Content created by Users. Although Company has no obligation to pre-screen such Content, the Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that the Company pre-screens, refuses or removes any Content, you acknowledge that the Company will do so for the Company’s benefit, not yours. Without limiting the foregoing, the Company shall have the right to change, alter, or remove any Content that violates the Terms or is otherwise objectionable and to immediately terminate your license to use the Company Properties, in whole or in part, without notice to you.
3.3 Storage. Unless expressly agreed to by the Company in writing elsewhere, the Company has no obligation to store any of Your Content that you Make Available on the Company Properties. The Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Company Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that the Company retains the right to create reasonable limits on the Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by the Company in its sole discretion.
4.1 Company Properties. Except with respect to Your Content and User Content, you agree that the Company and its suppliers own all rights, title and interest in the Company Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Company Properties.
4.2 Trademarks. [Company’s stylized name] and other related graphics, logos, service marks and trade names used on or in connection with the Company Properties are the trademarks of the Company and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Company Properties are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Company Properties.
4.4 Your Content. The Company does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Company Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5 License to Your Content. The Project Organizer and other Participants in a Community may search for, see, use, modify and reproduce any of Your Content that you Make Available to that Community and that other Users may search for, see, use, modify and reproduce any of Your Content that you Make Available to any “public” area of the Company Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. Subject to any applicable account settings that you select, you grant the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Company Properties to you and to other Users. You agree that you, not the Company, are responsible for all of Your Content that you Make Available on or in the Company Properties.
4.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any Communities or any other area on or in the Company Properties, you hereby expressly permit the Company to identify you by your username as the contributor of Your Content.
4.7 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to the Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that the Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Company Properties.
5. User Conduct.
As a condition of use, you agree not to use the Company Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any Content on or through the Company Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) involves commercial activities and/or sales without the Company’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (iv) impersonates any person or entity, including any employee or representative of the Company; (v) interfere with or attempt to interfere with the proper functioning of the Company Properties use the Company Properties in any way not expressly permitted by the Terms; or (vi) to attempt or engage in, any potentially harmful acts that are directed against the Company Properties, including but not limited to violating or attempting to violate any security features of the Company Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Company Properties, introducing viruses, worms, or similar harmful code into the Company Properties, or interfering or attempting to interfere with use of the Company Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Company Properties.
6. Interactions with Other Users.
You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that the Company reserves the right, but has no obligation, to intercede in such disputes. You use all User Content at your own risk. You agree that the Company will not be responsible for any liability incurred as the result of such interactions.or use.
7. Third-Party Services.
7.1 Third-Party Websites & Ads. The Company Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the Company Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of the Company. The Company is not responsible for any Third-Party Websites & Ads. The Company provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, the Terms and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
8. Fees and Purchase Terms.
8.1 General Purpose of Terms: Sale of Service, not Software. The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of the Company’s software, and, furthermore, any use of the Company’s software by you i will be considered merely in support of the purpose of the Terms.
8.2 Subscription Services. You will be responsible for payment of the applicable fee (“Service Subscription Fee”) for any Subscription Services (each, a “Subscription Service”) at the time you create your Account and select your payment method. The Subscription Service will commence upon receipt of payment by the Company (the “Service Commencement Date”). Except as set forth in the Terms, all fees for the Subscription Services are non-refundable. No contract will exist between you and the Company for any Subscription Service until the Company accepts your order by a confirmatory e-mail or other appropriate means of communication.
8.3 Payment. You agree to pay all Service Subscription Fees in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide the Company with valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing the Company with your credit card number, PayPal account or other payment information, you agree that the Company is authorized to immediately invoice your Account for all fees and charges due and payable to the Company hereunder and that no additional notice or consent is required. You agree to immediately notify the Company of any change in your billing address or the credit card or PayPal account used for payment hereunder. The Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Company Properties or by e-mail delivery to you.
8.4 Taxes. The Company’s fees are net of any applicable Sales Tax. If any Subscription Services, or payments for any Subscription Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to the Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and you will indemnify the Company for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that the Company is permitted to pass to its customers that is) the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8.5 Withholding Taxes. You agree to make all payments of fees to the Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to the Company will be your sole responsibility, and you will provide the Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
8.6 Automatic Renewal. Your subscription to any Subscription Service will continue indefinitely until terminated in accordance with the terms of this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at the Company’s then current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize the Company to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if the Company does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that the Company may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received.)
8.7 Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Subscription Service must be used within the specified time of the trial. At the end of the trial period, your use of that Subscription Service will expire and any further use of the Subscription Service as a Project Organizer is prohibited unless you pay the applicable Service Subscription Fee.
8.8 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: Intellitics, Inc., P.O. Box 111955, Campbell, CA 95011-1955, United States of America.
You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (the “Company Parties”) and the Project Organizers harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Company Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Company Properties.
10. Disclaimer of Warranties.
10.1 AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND THE COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE COMPANY PARTIES AND THE PROJECT ORGANIZERS EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(1.a) THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE COMPANY PROPERTIES WILL BE CORRECTED. THE COMPANY PARTIES ARE NOT RESPONSIBLE FOR ANY DELETION, ALTERATION OR LOSS OF COMMUNITIES OR RESULTS DUE TO NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, ACCIDENTAL DELETION, INCOMPATIBILIEIS OR ANY OTHER REASON.
(1.b) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. THE COMPANY PARTIES MAKE NO GUARANTIES AS TO SERVER RELIABILITY, SPEED OR CONSISTENCY.
10.2 NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.3 NO LIABILITY FOR CONDUCT OF OTHER USERS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE COMPANY PROPERTIES. YOU UNDERSTAND THAT THE COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE COMPANY PROPERTIES.
11. Limitation of Liability.
11.1 DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE COMPANY PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE COMPANY PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED THROUGH THE COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT OR TRANSMISSIONS; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON COMPANY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
11.2 CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE AMOUNT RECEIVED BY THE COMPANY AS A RESULT OF YOUR USE OF THE COMPANY PROPERTIES IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT YOUR CLAIM, AND (B) FIFTY DOLLARS ($50).
11.3 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU.
12. Procedure for Making Claims of Copyright Infringement.
It is the Company’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to the Company by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Company Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Company Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for the Company’s Copyright Agent for notice of claims of copyright infringement is as follows: [Include name or title, and physical address of Copyright Agent].
13. Term and Termination.
13.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Company Properties, unless terminated earlier in accordance with the Terms.
13.2 Prior Use. Notwithstanding the foregoing, if you used the Company Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Company Properties (whichever is earlier) and will remain in full force and effect while you use the Company Properties, unless earlier terminated in accordance with the terms.
13.3 Termination of Services by Company. Project Organizers will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Subscription Services hereunder to cancel such Service, in which case the Company will refund your Service Subscription Fee, if already paid pursuant to Section 8, for the applicable Subscription Service. Except as set forth above, the Service Subscription Fee for any Subscription Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if the Company is required to do so by law (e.g., where the provision of the Company Properties is, or becomes, unlawful), the Company has the right to suspend or terminate access to the Company Properties, including any Services provided to you. You agree that all terminations for cause shall be made in the Company’s sole discretion and that the Company shall not be liable to you or any third-party for any termination of your Account.
13.4 Termination of Services by You. If you want to terminate any Services provided by the Company, you may do so by (a) notifying the Company at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to the Company's address set forth below.
13.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Notwithstanding the foregoing, within ten days after termination or expiration of a Subscription Service, the Registered Project Organizer may request that Company provide it with all Content hosted in the Registered Project Organizer’s Communities and the Company will download such Content in a format selected by Company. The Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14.1 Violations. If the Company becomes aware of any possible violations by you of the Terms, the Company reserves the right to investigate such violations. If, as a result of the investigation, the Company believes that criminal activity has occurred, the Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. The Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Company Properties, including Your Content, in the Company’s possession in connection with your use of the Company Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; or (5) protect the rights, property or personal safety of the Company, its Users or the public, and all enforcement or other government officials, as the Company in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that the Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Company Properties, the Company reserves the right to:
(2.a) Warn you via e-mail (to any e-mail address you have provided to the Company) that you have violated the Terms;
(2.b) Delete any of Your Content provided by you or your agent(s) to the Company Properties;
(2.c) Discontinue your registration(s) with any of the Company Properties, including the Services or any Company community;
(2.d) Discontinue your subscription to any Subscription Services;
(2.e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(2.f) Pursue any other action which the Company deems to be appropriate.
15. International Users.
This Website can be accessed from countries around the world and may contain references to Company Properties and Content that are not available in your country. These references do not imply that the Company intends to announce such Company Properties or Content in your country. The Company Properties are controlled and offered by the Company from its facilities in the United States of America. The Company makes no representations that the Company Properties are appropriate or available for use in other locations. Those who access or use the Company Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
16. General Provisions.
16.1 Electronic Communications. The communications between you and the Company use electronic means, whether you visit the Company Properties or send Company e-mails, or whether the Company posts notices on the Company Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
16.2 Release. You hereby release the Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Company Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.
16.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.4 Force Majeure. The Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.5 Compliance. If you believe that the Company has not adhered to the Terms, please contact the Company by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
16.6 Dispute Resolution.
(6.a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, the Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Company Properties.
(6.b) Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
(6.c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(6.d) You and the Company must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR THE COMPANY MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, the Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (iv) the Company also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees; and litigation expenses, and then in such instance , the fees and costs awarded shall be determined by applicable law.
(6.e) The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 12 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Santa Clara County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Santa Clara County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Santa Clara County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(6.f) With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor the Company shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Santa Clara County, California. By using the Company Properties in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
16.7 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms.
16.8 Notice. Where the Company requires that you provide an e-mail address, you are responsible for providing the Company with your most current e-mail address. In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to the Company at the following address: Intellitics, Inc., P.O. Box 111955, Campbell, CA 95011-1955, United States of America. Such notice shall be deemed given when received by the Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.10 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
16.11 Export Control. You may not use, export, import, or transfer the Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Company Properties, and any other applicable laws. In particular, but without limitation, the Company Properties may not 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 using the Company Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Company Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by the Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.13 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Terms