TERMS OF USE ARMICLENZ.COM

 

 

PLEASE READ THESE TERMS OF USE (“AGREEMENT”) CAREFULLY.  BY CLICKING “I ACCEPT”,  DOWNLOADING, INSTALLING, LOGGING INTO, ACCESSING OR OTHERWISE USING ANY PART OF AN ARMIS WEBSITE AND/OR MATERIALS AVAILABLE THEREON  (COLLECTIVELY, THE “PRODUCT”), OR OTHERWISE MANIFESTING YOUR ASSENT TO THESE TERMS, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT UNEQUIVOCALLY AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, LOG INTO, ACCESS, COPY, OR OTHERWISE USE THE PRODUCT.

 

WARNING: IN THE EVENT YOU DO NOT AGREE TO THE TERMS, YOU ARE STRICTLY PROHIBITED FROM USING THE PRODUCT.  UNAUTHORIZED USE MAY RESULT IN CIVIL AND/OR CRIMINAL LIABILITY.  USE OF THE PRODUCT BY YOU OR YOUR AGENT SIGNIFIES YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

 

This Agreement is between ARMIS BIOPHARMA INC. (“Company”) and you, any person, or entity (referred to as a “User” or “you”) who purchases, downloads, installs, logs into, accesses or otherwise uses the Product.  In the event that User purports to be the agent of, represent or otherwise act on behalf of an entity or any other person, references to “User” shall include such entity or person in addition to such representative.  In addition to this Agreement, User shall be bound by and subject to any separate agreements entered into with Company by User or any entity or other person on behalf of whom User purports to be the agent of, represent or otherwise act (including, without limitation, Company’s privacy policy, available at https://armiclenz.com/privacy-policy/, and any other terms governing the purchase, access or use of products, software, content or services as provided by Company from time to time).  References to the Product, as used herein, include any and all accompanying and supporting software or services, whether or not provided online, content and documentation, and any upgrades, modified versions, updates or additions thereto.  Company and User are collectively referred to as the “parties.”

 

 

 

  1. Product Terms
    1. Description. The Product is proprietary to Company and its licensors and is protected by intellectual property laws.  User’s access to the Product is licensed and not sold.  Company (for itself or its licensors) hereby reserves all rights not expressly granted to User, including, without limitation, the right to alter, modify, update, enhance, improve or create derivative or collective works incorporating the Product.

License. Company grants User a limited, personal, nonexclusive, worldwide, revocable, nontransferable license to access and use the Product in its original, unmodified form as delivered by Company only and solely for internal purposes related to your business (and not for service bureau, time-sharing or similar services) in accordance with the terms of this Agreement and all applicable laws, rules, and regulations.  User is not permitted to use the Product on behalf of third parties without the written consent of Company. As between User and Company, User acknowledges that all ownership of the Product belongs to Company and its licensors.  User shall not exceed the scope of User’s license to use the Product, and User shall not provide User’s Account Information (as defined below) to another User for any reason, including, without limitation, in order for such other User to access any features of the Product. Modification, reverse engineering, reverse compiling, discovery of the source code, and/or disassembly of the Product are expressly prohibited.  User must not:

  • republish material from this website (including republication on another website);
  • sell, rent or sub-license material from the website;
  • show any material from the website in public;
  • reproduce, duplicate, copy or otherwise exploit material on this website for a commercial purpose;
  • edit or otherwise modify any material on the website; or
  • [redistribute material from this website [except for content specifically and expressly made available for redistribution].]

Where content is specifically made available for redistribution, it may only be redistributed within your organisation

 

User must not use this website in any way that causes, or may cause, damage to the website or impairment of the availability or accessibility of the website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

 

User  must not use this website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.

 

User must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to this website without  Armis’ express written consent.

 

Users  must not use this website to transmit or send unsolicited commercial communications.

 

User’s must not use this website for any purposes related to marketing without Company’s express written consent.

 

  1. Accessibility of the Product. User understands and agrees that from time to time that the Product and/or certain features or functionality of the Product may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment or software malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not foreseeable by Company.  User acknowledges that access to and/or features and functionality of the Product are provided over various facilities and communications lines, and that information will be transmitted over local exchange and Internet backbone carrier lines and through routers, switches and other devices (collectively, “carrier lines”) owned, maintained and serviced by third-party carriers, utilities, phone lines, and/or Internet service providers, all of whom are beyond Company’s control.  Use of the carrier lines to access and use the Product and transmit information is solely at User’s risk and is subject to all local, state, federal and international laws.
  2. Equipment. User shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for User’s access and use of the Product, including, without limitation, telecommunications and Internet access connections and links, web browsers or other equipment, and programs and services required to access and use the Product.
  1. Limitations
    1. Account Information and Security. In order to access and use the Product, User may be required to register with Company and select a username and password or otherwise activate the Product for use (collectively, User’s “Account Information”).  This Account Information shall be used only by User, and User may not share or otherwise disclose User’s Account Information to any other party.  User shall be responsible for the security, confidentiality and integrity of all information that User receives, transmits through or stores using or through the Product.  User shall be responsible for the security, confidentiality and integrity of User’s Account Information and for any authorized or unauthorized access and use of User’s account by any person.  User has the affirmative responsibility to monitor and control access to User’s Account Information.  If at any time User learns or suspects that User’s Account Information has been disclosed or otherwise made known to any person other than User, User agrees to immediately notify Company.  As part of this registration process, User may be required to disclose User’s email address, name, phone number and physical address to Company and, if so, User is required to keep such information current.
    2. Monitoring. Company reserves the right, but has no affirmative obligation, to monitor User accounts to (i) operate the Product properly; (ii) administer and manage Company’s business; (iii) provide all Users with the highest quality products and services; (iv) verify compliance with laws or this Agreement; (v) protect Company and its users; and/or (vi) satisfy any law, regulation or other government request. User agrees that Company may collect and use technical and related information regarding User’s system and use of the Product, including, without limitation, technical information about User’s computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of updates, upgrades, support and other services (if any) related to the Product, to verify compliance with this Agreement, and to improve the Product and related services.
    3. Other Users. User acknowledges that other users have, and/or may have, access to the Product and information made available thereby.  The actions of such other users are beyond the control of Company.  Accordingly, Company does not assume any liability for or relating to any impairment of the privacy, security, confidentiality, integrity, availability or restricted use of the Product or any content provided thereby from any other user’s actions or omissions.
    4. Consent to Use of Data. User agrees that Company may collect and use technical and related User and information regarding User’s system and use of the Product, including, without limitation, technical information about User’s computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of updates, support and other services (if any) related to the Product, to verify compliance with this Agreement, and to improve the Product and related services.
    5. Privacy Policy. In an effort to address User’s privacy concerns, Company has instituted a privacy policy, located at https://armiclenz.com/privacy-policy/ (the “Privacy Policy”), which is incorporated herein by this reference.
    6. Circumvention. User agrees not to access the Product or any other aspect of or information contained on the Product or any of the Company’s systems through any technology or means other than through User’s account using User’s Account Information.  User agrees not to use or launch any automated system, including, without limitation, “robots”, “spiders”, “penetrating devices”, “offline readers,” “viruses”, “Trojan Horses”, “worms”, “disabling”, “lock out”, or any other malicious code or system, as such terms are understood in the computer industry.  User agrees not to collect or harvest any personally identifiable information, including Account Information, from the Product or Company, nor to use the communications systems provided by the Product for any commercial solicitation.
  2. Company Content, User Content and User Conduct
    1. Company Content. To the extent the Product allows access to data, information, software, photos, video, text, graphics, music, sounds or other material provided by the Company, including information provided to the Company by third parties (collectively, all information made available by the Company, “Company Content”) and Company reserves all its intellectual property rights in such Company Content, including without limitation, its rights in copyrights, patents, trademarks, trade secrets or other proprietary rights. Company makes no representations or warranties as to the accuracy, completeness or use for any specific purpose of any Company Content. Company shall have no responsibility for or liability related to the accuracy, content, correctness, completeness, suitability, fitness for a particular purpose, or delivery of the Company Content. User’s use of any Company Content is at User’s risk and will be governed by this Agreement and the limited licenses granted herein. Company does not represent or warrant under any circumstance that use of the Product guarantees or ensures User’s full compliance with the Security Standards for the Protection of Electronic Protected Health Information, as set forth at 45 C.F.R. Part 164, Subpart C and the Product may not be used for such purposes.
    2. Inaccurate Content. All User Content (as defined below) originates from users, and as such, is beyond the control of Company.  Company neither initiates the posting of such User Content nor monitors the specific content or accuracy of the User Content being posted.  Without limiting the generality of any other provision of this Agreement, Company shall have no responsibility for or liability related to the accuracy, content, correctness, completeness, suitability, fitness for a particular purpose, or delivery of the User Content provided by any user.  User is responsible for the accuracy, content, correctness, completeness, suitability, fitness for a particular purpose, and delivery of the User Content posted by such User, and User warrants that the User Content posted by User is accurate, current and complete.  User shall indemnify Company for any and all losses or damages Company may incur regarding or related to the accuracy, content, currency, completeness or delivery of the User Content furnished by User pursuant to the indemnification provisions of this Agreement.
    3. Company Standards and Conduct. User’s privilege to use the Product depends on User’s compliance with the standards and conduct guidelines set forth by Company from time to time.  Company may revoke User’s privileges or take any other appropriate measures to enforce these guidelines if violations are brought to its attention.  As Company does not control or monitor the User Content posted on or in connection with the Product, under no circumstances will Company be liable in any way to User or any third person for any Company Content or User Content, including, without limitation, for any loss or damage of any kind incurred as a result of use of or exposure to the Company Content or User Content.  User agrees not to use the Product to or otherwise:
    4. upload, post, email or otherwise transmit any Company or User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, slanderous, vulgar, obscene, pornographic, profane, indecent, sexually explicit, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable or intended to offend any person based on a person’s race, ethnic heritage, national origin, sex, sexual orientation or preference, age, physical or mental illness or disability, marital status, employment status, housing status, religion or other characteristics as may be defined by applicable civil rights laws or that is otherwise objectionable to Company in its sole discretion;
    5. harm minors in any way;

iii.         impersonate any person or entity, including, but not limited to, a Company employee or representative, moderator, guide or host or falsely state or otherwise misrepresent its affiliation with a person or entity;

  1. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Company or User Content transmitted through the Product;
  2. upload, post or otherwise transmit any Company or User Content that User does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  3. upload, post or otherwise transmit any Company or User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

vii.        upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” multi-level marketing opportunities, franchises or any other form of solicitation;

viii.       upload, post or otherwise transmit any material, Company  or User Content that contains software viruses or any other malicious code, files or programs designed to interrupt, disrupt, destroy, damage or limit the functionality of any computer software or hardware or telecommunications equipment or violate the security of any computer network, crack passwords or security encryption codes or otherwise attempt to gain unauthorized access to any other computer system;

  1. attempt to cause the traffic levels of the software or other networks to rise without reason or for malicious purpose, including, without limitation, through transmission of large files to people for malicious purposes, “mailbombing,” transmissions intended to raise the costs of another’s access through excessive traffic levels, denial of service or similar attacks, repeatedly sending the same content to another person for the purpose of harassment or otherwise causing an unreasonable increase in traffic levels or usage of the Product as solely determined by Company;
  2. disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other Users of the Product are able to type or otherwise act in a manner that negatively affects other Users’ ability to engage in meaningful exchanges;
  3. interfere with or disrupt the servers or networks connected to the Product, or disobey any requirements, procedures, policies or regulations of networks connected to the Product;

xii.        intentionally or unintentionally violate any applicable local, state, national or international law;

xiii.       “stalk,” harass, threaten invade the privacy of or engage in predatory behavior towards another User of the Product or any other person; or

xiv.       collect, store or use personal data about other users.

User’s privilege to use the Product depends on User’s compliance with the this Agreement.  Company may revoke User’s privileges or take any other appropriate measures to enforce the terms of this Agreement, in its sole and absolute discretion, if violations are brought to Company’s attention.  Company is not, and does not, undertaking any obligation or liability relating to any User Content posted or activities undertaken utilizing the Product.

  1. Intellectual Property
    1. Product. The Company Intellectual Property Rights (as defined below) are the valuable, property of Company and its licensors.  United States and international intellectual property laws protect such Company Intellectual Property Rights.  User may use the Product as permitted herein and may not otherwise modify, adapt, translate, or create derivative or collective works based on the Product without the prior written consent of Company.  As between the parties, Company owns all right, title, and interest in and to the Product, (User Content is expressly excluded from the Product), and including, without limitation, all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative or collective works based thereon and all documentation thereto, all copyrights, trademarks, trade secrets, patents or other proprietary rights and goodwill therein, and all rights to  images, photographs, illustrations, graphics, audio and video created by or for Company therein (collectively, the “Company Intellectual Property Rights”).
    2. User Content. User shall be solely responsible for the posting or provision of User Content, where applicable.  In connection with the User Content, User affirms, represents and warrants that User owns or has the necessary licenses, rights, consents and permissions to use and authorize Company to use all proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Product.  User retains all ownership rights in User Content.  By posting or providing User Content to Company, User hereby grants Company a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, modify, edit, adapt, publish, translate, incorporate, prepare derivative and collective works utilizing, display and perform the User Content in any form, medium or technology now known or later developed throughout the universe.  In addition, User hereby waives (or warrants that the owner of such User Content has expressly waived) any and all “moral rights” in the User Content as to any of the foregoing rights and licenses granted to Company.  Company does not permit infringing activities or infringement of intellectual property rights using its Product.  Company reserves the right to remove or disable User Content without prior notice.
    3. Copyright Violations. It is the policy of Company to terminate access and/or account of any User who infringes the copyrights or intellectual property rights of others and to expeditiously remove or disable access to the alleged infringing material or content, including User Content, if Company is given proper notice of the infringement or infringing conduct by the copyright owner. If User believe any materials or content available on or through the Product infringe User’s copyright, User may request removal of those materials from the Product by contacting Company’s designated copyright agent (identified below) and providing the following information:
  • Identification of the copyrighted work that User believes to be infringed. Please describe the work and where possible include a copy or the location (e.g., URL) of an authorized version;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
  • User’s name, address, telephone number and (if available) e-mail address.
  • A statement that User has a good faith belief that the use of the materials User notifies Company about is not authorized by the copyright owner, its agent or the law.
  • A statement that the information that User has supplied is accurate and that “under penalty of perjury” User is the copyright owner or is authorized to act on the copyright owner’s behalf.
  • A signature or the electronic equivalent from the copyright holder or authorized representative.

 

Copyright Notices should be submitted to:

 

ARMIS BIOPHARMA, INC.

2950 East Harmony Rd, Suite 252

Ft. Collins, CO 80528

EMAIL: info@armisbiopharma.com

TEL : 800-970-1779

FAX : 970-797-2721

 

  1. Trademarks. Company retains all rights to any logo and any other trademarks owned or controlled by Company, whether or not included in the Product and any logos relating to the foregoing are trademarks or service marks of Company and its licensors (collectively, the “Company Trademarks”).  Use of Intellectual Property.  Except as otherwise expressly permitted by Company in writing in this Agreement or other written agreement executed by the Company, User may not copy, reproduce, republish, store, upload, post, transmit, analyze, adapt, reformat, print, distribute, commercially exploit or publicly display the Company Intellectual Property Rights, the Product, the Company Trademarks or the Confidential Information (as defined below) or any portion thereof in any manner whatsoever without the prior written consent of Company.  User may not remove, reproduce, alter, use, display, modify, copy or obscure any copyrighted material, trademark, service mark, legal or other proprietary notices in or on any portions of the Company Intellectual Property Rights, the Product, the Company Trademarks, the Confidential Information or any User Content or any portion thereof.
  1. Purchases

This Agreement, any other agreement between User and Company, and any other terms set forth by Company at the time of use of the Product shall govern User’s access and use of the Company Content and/or use of the Product.  User understands that by purchasing or accessing Company Content, or accessing the Product, User may encounter content that may be deemed offensive, indecent or objectionable, and such Company Content may or may not be identified as such.  User agrees that Company shall have no liability to User for Company Content that may be found to be offensive, indecent or objectionable.  Company Content types (including categories, sub-categories, and genres) and descriptions are provided for convenience, and Company does not guarantee their accuracy. Prices and availability of products are subject to change without notice.  Errors will be corrected where discovered, and Company reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted and whether or not the order has been confirmed and your payment method accepted and charged.

  1. Links

Company, the Product, Users, or other third parties may provide links to other Internet web sites or resources.  Company has no control over such sites and resources, and therefore User acknowledges and agrees that Company does not endorse and is not responsible for any such external sites or resources, the privacy policies and other practices of such sites or resources or for any content, information, advertising, products or other materials on or available from such sites or resources.  User further acknowledges and agrees that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, information, advertising, products or other material available on or through such site or resource.  By using the Product, User expressly releases Company from any and all liability arising from User’s use of any third-party web site.  Company encourages Users to be aware when Users leave the Product or otherwise visit external sites and to read the terms and conditions and privacy policy governing each other web site that User visits.

  1. User Representations

User represents and warrants to Company that: (a) User (i) has reached the age of majority in the jurisdiction where User resides (generally 18, 19 or 21 years of age depending on the jurisdiction), (ii) is an emancipated minor under the laws of User’s jurisdiction of domicile and/or residence, (iii) possesses legal parental or guardian consent, and (iv) otherwise has the power and authority to enter into and perform User’s obligations under this Agreement; (b) User has provided and will maintain accurate, complete and current registration information with Company, including, without limitation, User’s legal name, address, telephone number and email address, and will promptly provide updated information to Company in the event such information changes; (c) User is an authorized representative of the entity or party on whose behalf User purports to act; (d) User shall comply with all terms and conditions of this Agreement and any other agreement between the parties; (e) User’s access to and/or use of the Product does not and will not constitute a breach or violation of any other agreement, contract, terms of use, or similar policy or understanding to which User is or may be subject; and (f) User will not use the Product to violate any statute, law, rule or regulation or to otherwise violate the legal rights of Company or any other person.

  1. Termination

This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated as set forth herein. This Agreement will terminate automatically without notice to User from Company if User fails to comply with any provision of this Agreement, and may be terminated by Company in its sole and absolute discretion at any time for any reason or no reason.  User may terminate this Agreement at the end of the then current term (where a term is applicable) and by terminating access to and removing the Product and all Company Content and notifying Company. Upon termination, User shall terminate use of the Product and destroy any copies of the Product in User’s possession. User shall not be entitled to any refund on any portion of any fees or other charges paid in connection with this Agreement, if applicable. Company reserves the right to discontinue or suspend any aspect of or access to the Product at any time.  Company will terminate a User’s access to the Product if, under appropriate circumstances, such User is determined to be infringing another’s intellectual property or other rights or if User is in breach of any term of this Agreement.

  1. Disclaimer of Warranties

THE Product IS PROVIDED “AS IS,” “WHERE IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.  USE OF THE Product IS AT USER’S SOLE RISK.  Company DOES NOT WARRANT THAT USER’S USE OF THE Product WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES Company MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY CONTENT OR AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE Product.  Company MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING, TITLE, NON-INFRINGEMENT OR TIMELINESS, SUITABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE Product OR USER CONTENT.  USER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON THE Product OR ANY INFORMATION OR USER CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION.  ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS.

  1. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Company NOR ANY OF ITS LICENSORS, AFFILIATES OR SUBSIDIARIES SHALL BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE Product, THE USER CONTENT, OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE PRODUCT OR USER CONTENT, ANY CHANGES TO OR INACCESSIBILITY OF THE Product, ANY INACCURACY OR INCOMPLETENESS OF THE USER CONTENT OR INFORMATION CONTAINED IN THE Product, ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE Product OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE Product, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Company’S NOR ANY OF ITS AFFILIATES OR SUBSIDIARIES’ TOTAL LIABILITY FOR DIRECT DAMAGES SHALL EXCEED THE TOTAL FEES PAID, IF ANY, BY USER TO Company HEREUNDER.  IF USER IS DISSATISFIED WITH THE Product, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE Product AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.

THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE ProducT IN ACCORDANCE WITH THE TERMS OF THIS AgREEMENT.  USER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY Company CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.

USER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT Company SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING IS BORNE SOLELY BY USER.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS.

  1. Indemnification

User agrees to indemnify, hold harmless and defend Company, any of its licensors, affiliates or subsidiaries and any members, officers, employees and agents of the foregoing, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement or User’s violation of the terms and conditions thereof; (b) User’s use of the Product, including any data, User Content, communication or work transmitted or received by User; (c) any unacceptable use of the Product by User or through User’s account, including, without limitation, any statement, data or User Content posted, made, transmitted or republished by User which is prohibited as unacceptable under this Agreement; (d) gross negligence, fraud or any intentional or negligent act or omission of User; (e) User’s violation of any third party rights, including, without limitation, any intellectual property or privacy right; and (f) any claim that any User Content posted by User caused damage to a third party.

  1. Miscellaneous
    1. Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
    2. Amendment. No amendment or modification of this Agreement will be binding unless in writing and signed by Company.  The terms of this Agreement will govern any upgrades to the Product provided by Company that replace or supplement the original Product, unless such upgrade is accompanied by a separate or substitute agreement in which case the terms of that agreement will govern.
    3. Assignment. User shall not assign any of its rights, duties or obligations under this Agreement without the prior written consent of Company, and any attempted assignment or delegation without such consent shall be void and of no effect.
    4. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof.  No waiver shall be binding unless executed in writing by the party making the waiver.
    5. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
    6. Notice. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid or e-mail address provided in this Agreement.  User hereby consents to notice by email.  Unless otherwise provided in this Agreement, all notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
    7. Binding Arbitration. Any dispute, except for emergency injunctive relief, that the parties fail to resolve by shall be resolved by binding arbitration, which shall be conducted in the Commonwealth of Massachusetts, County of Suffolk. The arbitration shall be conducted in accordance with the Commercial Rules of the American Arbitration Association (“AAA”) which shall have jurisdiction over any dispute under this Agreement between User and Company, and shall be governed by the Federal Arbitration Act, 9 U.S. Code 1 et seq.  Either party may commence arbitration by serving a written Demand for Arbitration on the other party.  The parties shall attempt to agree on an arbitrator, but if the parties fail to reach such agreement within 20 days after the Demand for Arbitration is served, either party may request appointment of the arbitrator by the AAA of an arbitrator with relevant expertise.  The person so appointed by AAA shall serve as the arbitrator for resolution of the dispute.  If that person is disqualified for any reason, the AAA office shall appoint a substitute arbitrator.  Each party shall bear its own costs and expense, including attorneys’ fees and expenses.  Judgment on the arbitration award may be entered in any court having jurisdiction.  All arbitration shall be brought individually and not in any class action.
    8. Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the internal laws of the State of Colorado without regard to its choice of law principles. The state and/or federal courts located in the Colorado shall have exclusive jurisdiction to hear any emergency equitable relief request filed by a party to this Agreement.
    9. JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THE AGREEMENT.  EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. FOR PURPOSES OF CLARITY, EXCEPT FOR INJUNCTIVE RELIEF, ALL DISPUTES ARISING UNDER THIS AGREEMENT SHALL BE SUBJECT TO ARBITRATION PURSUANT TO SECTION 12(g) above.
    10. Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court or arbitrator, including, without limitation, service by certified or registered mail, return receipt requested.  No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts located in or serving Fort Collins, Colorado, USA.
    11. No action arising under this Agreement may be brought by User more than one (1) year after the cause of action has accrued.
    12. Equitable Relief. The parties agree that breach of the provisions of this Agreement, including, without limitation, the unauthorized use or duplication of the Product, would cause irreparable harm and significant injury to Company which would be both difficult to ascertain and which would not be compensable by damages alone.  As such, the parties agree that Company has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Company may have for User’s breach of this Agreement.
    13. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
    14. Force Majeure. Neither party shall be responsible or liable for failure to fulfill its obligations under this Agreement (except for payment of any fees) due to any major unforeseeable event beyond the control of, and not caused by the fault or negligence of, such party or its agents, including, without limitation, an act of God, fire, earthquake, flood, explosion, action of the elements, war invasion, terrorism, insurrection, riot, mob violence, sabotage, inability to procure equipment, facilities, materials or supplies in the open market, failure of power, failure of transportation, failure of telecommunications systems or infrastructure, strike, lockout, action of labor unions, condemnation, requisition, law or order of government, civil or military authorities; provided that the party failing to perform in such event shall promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.
    15. Survival. The terms and provisions of Sections 2-12, inclusive, shall survive any termination or expiration of this Agreement.
    16. Export Restrictions. Licensee agrees to comply with all U.S. and foreign export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations passed by the Department of Commerce. Licensee expressly agrees that Licensee shall not export, directly or indirectly, re-export, divert, or transfer the Software or any direct product thereof to any destination, company or person restricted or prohibited by U.S. export controls.
    17. Entire Agreement. This Agreement, in conjunction with any other written agreement entered into between the parties, constitutes the complete and exclusive statement of the agreement between the parties with respect to the Product and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Product.

 

 

 

USER HAS READ THE FOREGOING AGREEMENT AND TO THE EXTENT IT NEEDED TO BE CONSULTED WITH LEGAL OR OTHER ADVISORS REGARDING THE AGREEMENT.  USER UNDERSTANDS AND ACCEPTS THE TERMS OF THIS LICENSE AGREEMENT AND AGREES TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.  USER HAS FULL AUTHORITY TO EXECUTE THIS AGREEMENT.