THIS AGREEMENT WILL BE GOVERNED BY THE ELECTRONIC SIGNATURES ACT. YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND PROVISIONS CONTAINED IN THIS AGREEMENT BY ANY ACCESS, VIEWING OR USE OF THE SERVICES. IF YOU DO NOT AGREE, YOU MUST NOT ACCESS, VIEW OR USE ANY PART OF THE SITE.
1 Ownership and Intellectual Property
1.1 User Materials is defined as any information, data, content or materials you provide (directly or indirectly) to the Company or other Users. User Materials include information you submit, transfer, post or deliver to the Site, including without limitation, data, information, email addresses, User Accounts, User Accounts and passwords, as well as any other information resulting from or produced by your use of the Site obtained by the Company. Users are solely responsible for User Materials and you hereby agree that the Site acts as a passive means for the online storage, distribution and publication thereof.
1.2 Other than User Materials, all information included within or available via the Site, such as data, information, processes, procedures, methods, advertisements, articles, publications, text, graphics, logos, icons, images, audio, videos, software and other analog or digital information in any media, now known or later developed (collectively the Content), is the property of the Company or its licensors and is protected by copyright, trademark, patent or other intellectual and proprietary rights.
1.3 The compilation, meaning the collection, arrangement and assembly, of all Content via the Site is the exclusive property of the Company or its licensors and is protected by copyright, trademark, patent or other intellectual and proprietary rights. All software used via the Site is the property of the Company or its licensors and is protected by copyright, patent or other intellectual and proprietary rights.
1.4 All elements of the Site, including without limitation, the general design and Content, are protected by trade dress, moral rights, copyright, trademark, patent or other intellectual and proprietary rights. Except as explicitly permitted under this or another agreement with the Company or one of its respective licensors , no portion or element of this Site or its Content may be copied or retransmitted via any means and this Site, its Content and all related rights will remain the exclusive property of the Company or its licensors unless otherwise expressly agreed.
1.5 User may not reproduce, resell or sublicense the Site without the express prior written consent of the Company. User will not use the Site for any other purpose or for the benefit of any of its affiliates or any third party except as expressly authorized in advance in writing by the Company. User may not make any derivative works or other products or software based in whole or in any part on the Site. User may not modify the Site, Site or the documentation for its own use or for the use of any other person or entity.
1.6 The Site are copyrighted by the Company and all websites, html code and documents printed or generated by the Site or contained in the documentation are covered by the copyright notice and the restrictions on reproduction, publication and distribution contained in this Agreement apply. User will not remove or alter any copyright notice contained in or generated by the Site.
1.7 You agree that you will not use any robot, spider, other automatic device or manual process to monitor or copy any portion of the Site contained herein without the prior express written permission of the Company. You agree that you will not use any device, software or routine to bypass any operational element or to interfere or attempt to interfere with the proper working of the Site, server or activities conducted therein. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on Site or network infrastructure.
1.8 Much of the Content is updated on a real time basis and is proprietary or licensed to the Company by its Users or licensors . You agree that you will not copy, reproduce, alter, modify, create derivative works or publicly display any Content, except for User Materials, without the prior express written permission of the Company or respective the Company.
1.9 the Company and any accompanying logos, alone or in conjunction with any text, are trademarks and service marks of the Company and are in use, registered or pending in certain countries. the Company retains all right, title and interest in and to its trademarks, service marks, domain names, Internet sites and trade names worldwide (collectively the Marks). You agree to use the Marks only with the prior express written permission of the Company and then only in the manner authorized. You may not alter, modify or change the Marks in any way under any circumstances.
1.10 Subject to the terms and provisions of this Agreement, the Company grants a limited license to you to make personal use of the Site only for their intended purposes. This license expressly excludes any resale or making a derivative of the Site, the collection and use of other Users personal information, email addresses, User Materials or any data extraction or data mining whatsoever, except with the prior express written permission of the respective owner. You may not repost or otherwise reuse or distribute materials created by or resulting from using the Site.
1.11 You may not use, export or re-export the Content or Site at this Site or any copy or adaptation thereof in violation of any applicable law or regulation, including without limitation, United States export laws and regulations.
1.12 You agree to take all action and cooperate, at the Companys request, to protect the Companys right, title and interest in any property and agree to execute any documents necessary to perfect the Companys ownership of such right, title and interest.
1.13 Nothing in this Agreement grants either Party ownership or other rights except in accordance with the terms of this Agreement.
2 Site License and Use of the Site
2.1 Subject to the terms and provisions of this Agreement, the Company hereby grants to User a non-exclusive, non-transferable, non-sublicensable license to use and operate the Site in conjunction with the operation and function of the Site in accordance with the documentation.
2.2 The license granted in this Section extends to the Site in executable code form as its exists as an integral part of the Site only and not to source code. the Company does not grant and User does not obtain under this Agreement, any right to distribute, sell or sublicense the Site in any form. Except as provided herein, the Company grants no rights or licenses to User, by implication, estoppel or otherwise, in or to the Site or any intellectual property rights therein. User acknowledges that no right or license in or to any source code or technical-level documentation is granted under this Agreement. the Company reserves all rights not expressly granted to User hereunder.
2.3 User acknowledges that use of the Site is limited to the scope of the license granted under this Section and that this Agreement does not permit the User to use the Site other than as provided herein. User acknowledges that the Site and its structure organization and source code constitute valuable trade secrets of the Company and its suppliers. Without the Companys prior written consent, User will not knowingly or negligently permit other individuals or entities to
(A) use or copy the Site except in strict accordance with the terms and provisions of this Agreement;
(B) modify, translate, alter, adapt, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display or create derivative works, compilations or collective works based on the Site;
(C) apply any process, technique or procedure to ascertain or derive the source code to the Site, which is a valuable trade secret of the Company;
(D) merge the Site with any other software; publish or provide any results of benchmark tests run on the Site to a third party;
(E) sublicense, rent, lease, grant a security interest in or otherwise transfer rights to the Site except as specifically permitted herein;
(F) use the Site to operate in or as a time-sharing, outsourcing or service bureau environment other than for Users own internal use; or
(G) in any way allow third-party access to the Site.
2.4 The Site are available only to individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Site are not available to minors or to temporarily or indefinitely suspended Users. If you are a minor, you can use this service only in conjunction with your parents or guardians. If you do not qualify, do not access or use the Site.
2.5 To use the Site, you must accept the terms and provisions contained in this Agreement on behalf of yourself or the corporation, partnership or other legal entity that will be using the Site. By accepting this Agreement, you represent that you are:
(A) eighteen (18) years of age or older or twenty-one (21) years of age or older in places where eighteen (18) years of age is not the age of majority; and
(B) if applicable, you are authorized to sign for and bind the corporation, partnership or other legal entity that will be using the Site.
2.6 User Accounts or User Accounts may not be transferred or sold to another party. If you are registering as a business entity, you represent that you have the authority to bind the entity to this terms and provisions contained in this Agreement.
2.7 You agree to comply with all applicable local, state, federal and international laws and regulations related to use of the Site.
2.8 You may not use the Site to engage in fraud or other illegal activity or to infringe the intellectual property rights of the Company or third parties. If you believe that a User of this Site has infringed on materials protected by copyright, trademark or patent law, contact us via email by clicking here.
2.9 You agree to comply with the terms and provisions of all agreements you have with any third parties, as such terms and provisions relate to use of the Site.
2.10 In consideration for the Site to be provided by the Company to User hereunder, User agrees to comply with and the Company will invoice User in accordance with, the applicable the Company Price List, the terms and provisions of which are incorporated herein by reference. A current version of the the Company Price List for any respective the Company site is maintained at the respective the Company site URL.
2.11 Except as the Parties specifically agree in writing, You will be solely responsible for the selection, implementation and performance of all third party equipment, software and telecommunication equipment and services, including without limitation, Internet email connectivity and Internet services used in connection with the Site. You are responsible for ensuring that the email system and computer with which you choose to operate the Site and products thereof, including without limitation, data or information generated by or resulting from the operation of the Site, meets the Companys minimum standards for interoperability, including without limitation, processing speed, memory requirements, choice of email server and client software and use of dedicated Internet access for accessing Internet email.
3 User Materials
3.1 User Materials or any items included therein:
(A) will not be false, inaccurate or misleading;
(B) will not be fraudulent or involve the sale of counterfeit or stolen items;
(C) will not infringe any third partys intellectual property, copyright, patent, trademark, trade secret, publicity rights, privacy rights or other proprietary rights;
(D) will not violate any local, state, federal or international law or regulation, including without limitation, those governing export control, consumer protection, unfair competition, anti- discrimination, false advertising, deceptive practices or securities transactions;
(E) will not be defamatory, libelous, unlawfully threatening or unlawfully harassing;
(F) will not be obscene, contain child pornography, harmful to minors or be distributed to people not legally permitted to receive such content;
(G) will not create liability for the Company or cause it to lose, in whole or in part, the Site, its Internet Service Provider, hosting server or other suppliers;
(H) will not violate the terms and provisions of any agreements you have with any third parties as such relate to your use of the Site; and
(I) will not contain any virus, Trojan Horse, worm, time bomb, cancelbot, robot, spider, monitor or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, record or expropriate any system, data or personal information.
3.2 You will only use the Site solely for purposes related to the Site.
3.3 By entering into this Agreement you grant the Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right, including a waiver of any applicable moral rights, to exercise the copyright and publicity rights you have in your User Materials, in any media now known or later developed, solely for purposes related to providing the Site. You represent and warrant that you have the authority to grant such license and that the holder of any intellectual property or other proprietary rights in your User Materials has licensed, assigned or waived such holders rights to the extent necessary to grant the license.
3.4 Any communications or materials you transmit to the Company by electronic mail or otherwise may be used by the Company, its affiliates or licensors for any purpose, including without limitation, reproduction, disclosure, display, performance, transmission, publication, broadcast and posting. Furthermore, the Company and its affiliates and licensors are free to use any ideas, concepts, know-how, hypothesis, premise or technique contained in any such communication for any purpose whatsoever, including without limitation, developing, manufacturing and marketing products or services.
3.5 the Company reserves the right to access, monitor, remove or disable access to any User Materials at any time in its sole and absolute discretion.
4 Warranty Disclaimer
4.1 EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SITE, ITS CONTENT OR ANY MATERIALS CONTAINED THEREIN OR CONSTITUTING A PART THEREOF ARE AT YOUR OWN RISK AND THAT THE COMPANY, ITS AFFILIATES AND SUPPLIERS PROVIDE THE SERVICES AND CONTENT AS IS AND AS AVAILABLE, WITHOUT ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES, REPRESENTATIONS, ENDORSEMENTS OR CONDITIONS. THE COMPANY, ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, INCLUDING WITHOUT LIMITATION:
(A) ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT;
(B) THAT THE SITE, ITS CONTENT OR ANY MATERIALS CONTAINED THEREIN OR CONSTITUTING A PART THEREOF WILL MEET ANY REQUIREMENTS OR WILL BE AVAILABLE, ACCURATE, RELIABLE, CORRECT, USEFUL, TIMELY, UNINTERRUPTED, SECURE OR FREE FROM DEFECTS OR ERROR, INCLUDING WITHOUT LIMITATION, TRANSMISSION OR RECEPTION OUTAGES, BLOCKAGES, WEAKNESSES, STATIC, VIRII, WORMS, TROJAN HORSES, MALICIOUS CODE OR OTHER HARMFUL COMPONENTS OR EVENTS;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF THE COMPANY, ITS AFFILIATES OR SUPPLIERS.
4.2 While reasonable efforts are made to ensure the accuracy, correctness and reliability of the Site, the Company makes no representations or warranties as to the accuracy, correctness and reliability of the Site, which may be out of date. the Company makes no commitment to update the Site.
4.3 the Company does not guarantee continuous, uninterrupted or secure access to the Site and operation may be interfered with by numerous factors beyond its control.
4.4 The Site is provided as is and with all faults and the entire risk as to the satisfactory quality, performance, accuracy and effort is with the User.
4.5 the Company may provide links to third party sites. Links to third party sites are provided solely as a convenience. Use of such links will cause the User to leave the Site. the Company does not review or control any third party sites and does not endorse, make any representations regarding and is not responsible for any content, services, information, software, products or materials found therein, nor any loss or results suffered in relation to use of the third party site. Access of any third party site via the the Company domain or sub-domain is entirely at the Users own risk. You hereby waive any and all claims against the Company regarding the inclusion of links to third party sites and your use of those sites.
4.6 Some states and foreign countries do not permit the exclusion or limitation of implied warranties. Therefore, some or all of the above limitations may not apply to the extent they are prohibited or superseded by state or national provisions. There may also be other legal rights which vary from state to state.
4.7 No representative, agent, employee or other person is authorized to make any modifications, extensions or additions to any warranty or disclaimer contained herein.
5 Limitation of Liability
5.1 EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT OR ELSEWHERE VIA THE SITE OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER THE COMPANY NOR ITS SUCCESSORS, ASSIGNS, AFFILIATES OR SUPPLIERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR CONSULTANTS OR ANY OTHER THIRD PARTY MENTIONED AT THE SERVICES WILL BE LIABLE FOR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION:
(A) THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION;
(B) DIRECT, INDIRECT, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF THE RELIANCE ON OR USE, MISUSE, INABILITY TO USE, RESULTS OF USE OR PERFORMANCE OF THE SITE AND ANY THIRD PARTY SITES LINKED TO FROM THE SERVICES OR THE MATERIALS, INFORMATION, MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR FAILURE THEREOF OR LINKS CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR
(C) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS, INCLUDING LEGAL OR ATTORNEYS FEES, RESULTING DIRECTLY OR INDIRECTLY OUT OF OR OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED UPON A CONTENTION THAT USE OR ACCESS OF THE SITE, ITS CONTENT OR ANY MATERIALS CONTAINED THEREIN, INCLUDING CONTENT AND MATERIALS SUPPLIED BY YOUR OR A THIRD PARTY, INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PUBLICITY, PRIVACY OR OTHER INDUSTRIAL, CONTRACTUAL OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. THIS LIMITATION APPLIES TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE COMPANY, ITS SUCESSORS, ASSIGNS, AFFILIATES OR SUPPLIERS, TOGETHER WITH ALL OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND CONSULTANTS WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO A CAUSE OF ACTION AGAINST THE COMPANY IN CONTRACT, TORT OR ANY OTHER LEGAL DOCTRINE. YOUR SOLE AND EXCLUSIVE REMEDY REGARDING ANY OF THE FOREGOING IS TO DISCONTINUE USE OF THE SITE, ITS CONTENT AND ANY MATERIALS CONTAINED THEREIN.
5.2 If your use of the Site results in the need for servicing, repair or correction of equipment or data, you assume all costs thereof.
5.3 The aggregate liability of the Company, its suppliers or distributors to you or any third parties in any circumstance is limited to one-hundred United States dollars ($100.00).
5.4 Some United States states and foreign countries do not permit the exclusion or limitation of incidental or consequential damages. Therefore, some or all of the limitations above may not apply to you to the extent they are prohibited or superseded by state or national provisions. You may also have other legal rights which vary from state to state.
5.5 In jurisdictions not allowing the exclusion or limitation of incidental or consequential damages, the liability of the Company, its successors, assigns, affiliates, licensors and suppliers, together with all of their respective officers, directors, employees and consultants will be limited to the fullest extent permitted by applicable law.
6.1 You hereby agree to defend, indemnify and hold harmless the Company, its successors, assigns, affiliates, licensors and suppliers, together with all of their respective officers, directors, employees and consultants from and against any and all claims, civil and criminal liability, judgments, penalties, taxes, damages and all costs and expenses, including without limitation, those arising out of or relating to your use, misuse or inability to use the Site or any materials or any violation of this Agreement or any local, state or federal law, regulation or statute or any rights of any third parties, including without limitation:
(A) any third party claim, action or allegation that the Site infringe or violates any third partys copyright, patent, trade secret, trademark, right of publicity or right of privacy, contains any defamatory content or violates any local, state or federal law, regulation or statute, including without limitation, any claim of personal injury or product liability;
(B) any fraud, manipulation or other breach of this Agreement or other policies and agreements by you;
(C) any third party claim, action or allegation brought against the Company arising out of or relating to a dispute with you over the terms and provisions of an agreement or related to the purchase or sale of any goods or Site;
(D) your violation of any law or the rights of a third party;
(E) your use or the Companys provision, of the Site or use of your User Account by any third party. the Company will have the right to participate in its defense and hire counsel of its choice, at your expense. You will not settle any action or claims on the Companys behalf without the prior written consent of the Company; and
(F) reasonable attorneys fees resulting from any breach of any warranty or representation under this Agreement.
6.2 the Company reserves the right to exclusively defend and control any indemnification matters and you hereby agree that you will fully cooperate and assist in any such defense.
7 Deactivation, Suspension and Termination
7.1 Without limiting other remedies, the Company, in its sole and absolute discretion, may terminate this Agreement, deactivate, suspend or terminate your access to the Site immediately without notice for any reason, including without limitation:
(A) infringement of the intellectual property rights of the Company or third parties;
(B) inability to verify or authenticate any information you provide to us;
(C) breach of any terms of this Agreement or documents incorporated by reference;
(D) breach of the applicable the Company Price List; or
(E) the taking of any actions that, in the sole judgment of the Company, may cause financial loss or legal liability for you, the Company or other Users.
7.2 In the event the Company suspends or terminates your access to the Site, you acknowledge that you may be denied any further access to any User Materials placed on any the Company site or network location.
8.1 The Company is committed to protecting User privacy and will only use and disclose User information in accordance with the provisions of this Agreement.
8.2 The Company collects information in different ways throughout the various parts of its Site. This information is used to provide a customized experience as you use the Site and, generally, do not share this information with third parties. Personal information will only be disclosed if your permission is received beforehand or in very special circumstances, such as when the Company believes such disclosure is required by law or other special cases.
8.3 Users may be asked to provide certain personal information when they are assigned a User Account, including name, address, telephone number, email address, billing information and the type of computer being used to access the Site. The personal information collected from Users during the User Account assignment process is used to manage User information and for billing purposes related to the Company. The personal information collected from Users is used to enable delivery, operation and maintenance of the Site, including without limitation, to provide accurate customer and technical service, to respond to inquiries and troubleshooting, to ensure proper delivery of Content and billing information, to provide specific services as requested or subscribed for, to protect the security of the Site and network resources, to ensure compliance with local, state or federal laws, regulations or statutes, to ensure compliance with this Agreement and other policies governing use of the Site and to maintain records. This information is not shared with third parties unless your permission is received beforehand or in very special circumstances, such as when the Company believes that such disclosure is required by law.
8.4 You must at all times maintain the confidentiality of User Accounts and passwords. If you are a corporation or other legal entity, you may allow employees to use User Accounts and passwords, provided that you are responsible for all activity by such employees.
8.5 Permitting use of the Site by a third party is prohibited and is a violation of this Agreement. If there is a breach of security through your User Account, you must immediately change your password and also notify the Company. You will be liable for any unauthorized use of the Site until you notify us of the security breach.
8.6 The Company may provide links to third party sites where you can purchase products and services or register to receive materials, such as catalogs or new product and service updates. The third party site may ask you to provide personal information, such as name, address, email address, phone number and credit/debit card information. If you complete an order for someone else, such as an online gift order sent directly to a recipient, the third party site may ask you to provide personal information about the recipient, such as the recipients name, address, email address and phone number. the Company has no control over any third party sites use of any personal information you provide to such third party site under any circumstances. Please exercise extreme care when providing personal information to a third party site.
8.7 The Company may display online advertisements and may share aggregated and non-identifying information about Users collected via the Site, as well as through online surveys and promotions with these advertisers. Additionally, in some instances, this aggregated and non-identifying information is used to deliver tailored advertisements. the Company does not share personal information about Users with these advertisers.
8.8 When Users send email inquiries to an email address within the sunnydollars.com domain, the return email address is used to answer the email inquiry. the Company does not use the return email address for any other purpose and does not share the return email address with any third party under any circumstances.
8.9 The Company may periodically conduct User surveys. Users are encouraged to participate in these surveys because they provide important information to assist in improving the Site. Responses to such surveys will remain strictly confidential and participation is voluntary.
8.10 Information received from responses to User surveys may be combined or aggregated, with the responses of other the Company Users to create broader, generic results to the survey questions. The aggregated information may be used to improve the quality of the Site. This aggregated, non-personally identifying information may be shared with third parties.
8.11 the Company does not to use or share the personal information about Users in ways unrelated to the ones described above without also providing you an opportunity to opt out or otherwise prohibit such unrelated uses. However, the Company may disclose personal information about Users or information regarding your use of the Site or third party sites accessible through the Site, for any reason if the Company believes, in its sole and absolute discretion as permitted by law, that it is legal, ethical and reasonable to do so in order to:
(A) satisfy laws, such as the Electronic Communications Privacy Act, regulations or governmental or legal requests for such information;
(B) disclose information that is necessary to identify, contact or bring legal action against someone who may be violating the terms and provisions of this Agreement;
(C) operate the Site properly; or
(D) protect the Site and its Users.
8.13 Advertisers, third parties and partners may also use their own cookies. the Company does not control use of these cookies and expressly disclaims responsibility for information collected through them.
8.14 Protecting childrens privacy is especially important. It is the Company policy to comply with the Childrens Online Privacy Protection Act of 1998 and all other applicable laws.
8.15 Please remember that any information you may disclose in public areas of the Site or the Internet, becomes public information. You should exercise extreme care when deciding to disclose personal information in these public areas.
8.16 The Site has security measures in place to protect the loss, misuse and alteration of the information under its control. While the Company makes every effort to ensure the integrity and security of its network and systems, it cannot guarantee that these security measures will prevent third-parties from illegally obtaining this information.
9.1 Each Party will treat as strictly confidential all Confidential Information of the other Party and will not disclose such Confidential Information to any person or entity or use such Confidential Information except as contemplated herein or as otherwise authorized in writing. Each Party will implement procedures to prohibit the unauthorized disclosure or misuse of the other Partys Confidential Information by its agents, employees and representatives and will not intentionally disclose such Confidential Information to any third party except for the purposes of this Agreement and subject to confidentiality obligations similar to those set forth herein.
9.2 Notwithstanding the above, neither Party will have liability to the other with regard to any Confidential Information of the other which:
(A) was publicly available at the time it was disclosed or becomes publicly available through no fault of the receiver;
(B) was known to the receiver, without similar confidentiality restriction, at the time of disclosure;
(C) is disclosed with the prior written approval of the discloser;
(D) is independently developed by the receiver without any use of the Confidential Information; or
(E) becomes known to the receiver, without similar confidentiality restriction, from a source other than the discloser without breach of this Agreement by the receiver.
9.3 In addition, each Party will be entitled to disclose the others Confidential Information to the extent required by any order or requirement of a court, administrative agency or other governmental body, provided that the receiver will provide prompt, advance written notice thereof to the discloser and cooperate with the discloser if the discloser elects to seek a protective order or otherwise prevent such disclosure.
9.4 Nothing in this Agreement will restrict each Partys rights to assign or reassign its employees, including without limitation those who have had access to the other Partys Confidential Information, to any project in its discretion.
10.1 This Agreement will enter into force on the date on which User manifest their consent by selecting I Agree and clicking the appropriate button below or by any access, viewing or use of the services and will remain in force for twelve (12) months thereafter. This Agreement will automatically be renewed for additional periods of twelve (12) months, unless it is terminated by either Party giving one month written notice prior to the expiration of the initial or any additional term. the Company will notify User of any changes in the terms of this Agreement at least thirty (30) days prior to the expiration of the initial or any additional terms.
10.2 If either Party defaults in the performance of its material obligations hereunder and if any such default is not corrected within thirty (30) days after it will have been called to the attention of the defaulting Party in writing by the other Party, then the other Party, at its option, may, in addition to any other remedies it may have, thereupon terminate this Agreement by giving written notice of termination to the other Party
10.3 If any amounts due under this Agreement are not paid when due, then the Company may, at its option, without limiting the Companys other available remedies suspend its further obligations to User under this or any other agreement between the Parties and, if such amounts remain unpaid twenty (20) days after receipt by User of written notice from the Company that such amounts are overdue, the Company may, in its sole and absolute discretion, terminate this Agreement immediately and without further notice.
11 Governing Law and Dispute Resolution
11.1 This Agreement will be interpreted, construed and governed by the laws of the State of Texas, United States of America, without reference to its laws relating to conflicts of law and not including the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods.
11.2 Venue for all disputes arising under this Agreement will lie exclusively in Travis County, Austin, Texas.
11.3 You agree that any and all disputes, claims or controversies arising from or relating to this Agreement or the breach, termination or validity thereof which cannot be resolved informally will be resolved individually, without resort to any form of class action or consolidation in any arbitration with any dispute, claim or controversy of any other party and will be submitted to binding arbitration in accordance with the commercial rules of the American Arbitration Association then in effect.
11.4 The arbitration panel will consist of one (1) neutral arbitrator if the amount in controversy is less than twenty-thousand United States Dollars ($20,000.00), otherwise the panel will consist of three (3) neutral arbitrators, each an active, licensed attorney with at least five (5) years of experience in the primary area of the law as to which the dispute relates.
11.5 The arbitration will be in the English language in Lynden, Washington.
11.6 The arbitration panel will determine issues of arbitrability but may not limit, expand or otherwise modify the terms and provisions contained herein.
11.7 Any award made pursuant to this section:
(A) will be a bare award limited to a holding for or against a Party and affording such remedy as is deemed equitable, just and within the scope of this Agreement;
(B) will be without findings as to issues, including without limitation, copyright, trademark or patent validity or infringement or a statement of the reasoning on which the award rests;
(C) may, in circumstances other than patent disputes, include injunctive relief;
(D) will be made within four (4) months of arbitration panel appointment; and
(E) may be entered in any court of competent jurisdiction.
11.8 The requirement for arbitration will not be deemed a waiver of any right of termination under this Agreement and the arbitration panel is not empowered to act or make any award other than based solely on the rights and obligations of the Parties prior to any such termination.
11.9 Each Party will bear its own expenses, but those related to the compensation and expenses of the arbitration panel will be borne equally.
11.10 The arbitration panel will not have authority to award punitive or damages in excess of compensatory damages and each Party irrevocably waives any claim thereto.
11.11 The Parties, their representatives, participants and the arbitration panel will hold the existence, content and result of the proceedings in confidence.
11.12 Notwithstanding the foregoing, the Company reserves and will have the sole and exclusive right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction, whether in the United States or in a foreign country, to collect any fees, recover damages for or obtain injunctive or other relief relating to the Site, its operation or intellectual property if, in the sole opinion of the Company, such action is necessary or desirable.
(A) You hereby consent and agree to irrevocably submit to the exclusive personal jurisdiction of such courts, accept service of process by mail and irrevocably waive any available jurisdictional, venue or inconvenient forum objections to such court.
(B) You hereby agree that such action will not be deemed a waiver of the obligation to arbitrate.
11.13 In the event you file an action contrary to the foregoing provisions, the Company may recover attorneys fees and costs up to five-thousand Unites States Dollars ($5,000).
12 General Provisions
12.1 No action of the Company, other than an express written waiver or amendment, may be construed as a waiver or amendment of any of this Agreement.
12.2 Should any clause of this Agreement be found unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect.
12.3 You agree that this Agreement and all incorporated agreements may be automatically assigned by the Company, in its sole and absolute discretion, to a third party in the event of a merger or acquisition.
12.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
12.5 Any failure to act with respect to a breach of the terms and provisions of this Agreement does not waive any right by the Company to act with respect to subsequent or similar breaches.
12.6 All provisions of this Agreement that by their nature should survive termination will survive termination, including without limitation, provisions related to intellectual property, warranty disclaimers, general releases, limitations of liability, indemnity, arbitration, governing law and the general provisions.
12.7 You also may be subject to additional terms and provisions that may apply when you use affiliate or third party services, sites, content or software.
12.8 Should the Company prevail in any action or proceeding to enforce rights under this Agreement, it will be entitled to recover its costs and attorneys fees from you.
12.9 You agree that you are subject to the terms and provisions contained in this Agreement and any additional policies applicable to the Site, which may be posted from time to time. All such posted policies or rules are effectively immediately upon posting and are hereby incorporated by reference into this Agreement.
12.10 The provisions of this Agreement will be binding upon and will inure to the benefit of the Parties, their heirs, administrators, successors and assigns.
12.11 You may not assign this Agreement or the rights and obligations hereunder to any third party under any circumstances.
12.12 You will be solely responsible for all costs and expenses incurred arising out of or relating to this Agreement.
12.13 You acknowledge and agree that if you are located in any United States or international jurisdiction where any common, statutory, regulatory, codified or other law, rule or regulation makes accessing the Site or any materials contained therein inappropriate, illegal or subject to consents or permissions that you have not obtained or voids this Agreement in whole or in part, then you are not authorized to access the Site or any materials contained therein.
12.14 The Site contain features that may allow User to collect data from, control or monitor computers running the Site. User hereby agrees to hold the Company harmless from and against any damages, claims, losses, settlements, attorneys fees and other expenses related to any such activities.
12.15 User acknowledges and agrees that the Site are not intended for use with any high risk or strict liability activity and the Company makes no warranty and will have no liability arising from any use of the Site in any high risk or strict liability activities.
12.16 User acknowledges that the laws and regulations of the United States restrict certain export and re-export of commodities and technical data of United States origin, including the Site. User agrees that it will not export or re-export the Site in any form.
12.17 The Section headings in this Agreement are solely for convenience and will not be considered in its interpretation. Any applicable the Company Price List is incorporated herein as if set forth herein in full. This Agreement has been reviewed and negotiated by the parties and each party has had the opportunity to review this Agreement with counsel of its own choosing. Accordingly, this Agreement will not be construed strictly for or against either party. Pronouns used in this Agreement will be construed to include the masculine, feminine or neuter, as the identity of the antecedent may require.
12.18 Each Party acknowledges that its material breach of this Agreement including, without limitation, unauthorized disclosure or use of the other Partys Confidential Information, will cause irreparable harm and significant injury to the Party which may be difficult to ascertain and that a remedy at law would be inadequate. Accordingly, each Party agrees that the other Party will be entitled to immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have at law or in equity.
13 Revision, Amendment and Notice
13.1 the Company reserves the right to amend or revise this Agreement and any terms and provisions incorporated by reference herein at any time and in any manner. Amended or revised terms and provisions will be effective immediately. Users will be notified of any such revision or amendment as provided herein. This Agreement may not otherwise be amended or revised except in a writing signed by both parties.
13.2 the Company reserves the right to revise the Site, Content, information, materials and available contractual license terms featured via the Site without notice.
13.3 Except as explicitly stated otherwise, any notice required according to this Agreement will be given as follows:
(A) Notice to the Company: via email by clicking here.
(B) Notice to Users: via http://www.deenakalai.com/terms/ or email to the address provided during the registration process.
13.4 Notice will be deemed given twenty-four (24) hours after any HTTP document is posted or after any email is sent, unless the sending Party is notified that the email address is invalid. Alternatively, notice may be sent via reputable carrier to the address provided to the Company during the registration process. In such case, notice will be deemed given three (3) days after the date sent.
13.5 The designated agent for service of notices pursuant to the Digital Millennium Copyright Act is as follows:
Attn: Deena Kalai, Attorney at Law
2203 East 5th Street
Austin, TX 78702
14 General Release
14.1 In the event that you have a dispute with one or more Users or users of third party sites, you release the Company, its successors, assigns, affiliates, licensors and suppliers, together with all of their respective officers, directors, employees and consultants from claims, demands and damages, both actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
14.2 the Company does not control the information provided by other Users or users of third party sites that is made available through the Site. You may find other Users information to be offensive, harmful, inaccurate or deceptive. Please use caution, common sense and practice safe online behavior when using the Site. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals.
14.3 If you are a California resident, you waive California Civil Code 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.
15 No Relationship or Agency
15.1 No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created herein.
16 Force Majeure
16.1 Neither you nor the Company will be liable for or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond the affected Partys reasonable control that it is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
17.1 If any court or other tribunal of competent jurisdiction hereof holds any term, clause or provision of this Agreement invalid or unenforceable, then such term, clause or provision will be eliminated, severed or limited to minimum extent necessary such that this Agreement will otherwise remain in full force and effect.
18 Entire Agreement
18.1 This Agreement and the terms, clauses and provisions hereof, as well as those incorporated by reference, constitutes the entire understanding and agreement of the Parties and revokes and supersedes all prior oral or written agreements between the Company and the User and is intended as a final expression of their Agreement.
18.2 You agree that you are not entering into this Agreement in reliance on any statements, representations or promises other than those contained herein.
18.3 This Agreement will take precedence over any other documents, incorporated herein or otherwise, which may conflict with this Agreement.
18.4 This Agreement will not be modified or amended except in writing signed by the Parties, specifically referring to this Agreement.