This FileLocker website (and any and all sub-domains) located at http://www.filelocker.com and any and all services and software provided through or by such websites or otherwise in connection with the FileLocker Service (collectively, including such websites and all such services, the “Site”) is owned and operated by Infrascale, Inc. For the purposes hereof, the users of the Site are referred to as “you”, “your” or “User” and Infrascale is referred to as the “Company,” “we,” “us,” or “our.” Certain Users may also be referred to as a “Paying User”, as further discussed below.
The following is a legally binding agreement (the “Agreement”) between you and the Company with respect your access and use of the Site and any services provided through or in connection with the Site. For good and valuable consideration (the adequacy and sufficiency of which is acknowledged by each of the parties) of the mutual promises of the parties contained herein, the parties hereby agree as set forth below. All Users will be subject to and bound by this Agreement, provided that any User that is or becomes a Paying User (as defined below) will be additionally bound by the terms and conditions herein that pertain to Paying Users.
Acceptance of Terms
BY ACCESSING, BROWSING AND/OR USING THE SITE AND ANY SOFTWARE, SERVICE INFORMATION OR MATERIALS OFFERED ON OR VIA THE SITE, YOU BECOME A USER OF THE SITE AND EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPT AND AGREE TO EACH OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO ACCEPT EACH AND ALL OF THE FOLLOWING TERMS AND CONDITIONS AS SET FORTH BELOW, PLEASE DO NOT ACCESS, BROWSE OR USE THE SITE OR ANY OF ITS SOFTWARE, SERVICES, INFORMATION, MATERIALS OR OTHERWISE. FURTHERMORE, AND WITHOUT LIMITING THE PRECEDING SENTENCE, IF YOU BECOME A MASTER USER OF THE SITE BY SIGNING UP FOR OUR MASTER USER SERVICE, YOU ACCEPT AND CONSENT TO ALL PROVISIONS HEREIN WITH RESPECT TO OUR MASTER USER SERVICE (IN ADDITION TO ALL OTHER TERMS AND CONDITIONS HEREIN).
You must be at least 18 years old to use the Site. By using the Site, you represent and warrant that you are at least 18 years of age. If you are not 18 years of age or older, please do not access, use or browse the Site.
The Company does not represent or endorse the accuracy or reliability of, and specifically and expressly disclaims any and all liability related to (whether directly or indirectly), any information displayed, uploaded, posted on the Site, or otherwise distributed or transmitted through the Site by any person or entity. Moreover, the Company in its sole and absolute discretion reserves the right to refuse to post, host or display, and the right to remove or delete your data from this Site, for any reason (or no reason) at any time without any notice thereof to you or any other person or entity. Any comments, feedback or advice that you provide to us at, through, in connection with or relating to this Site shall be deemed to be non-confidential and you agree that we (and our affiliates) shall have an unrestricted, absolute and perpetual right and royalty-free license to post and publish the same (in our sole and absolute discretion) for any purpose whatsoever.
Scope of Site
The scope of the Site and any and all services and software associated therewith shall be in the sole and absolute discretion of Company. The Company may include, without limitation, online hosting, the collection, editing, organizing, modifying, book marking, transmission, storage and sharing of data and information as part of the Site.
Your Conduct, Behavior and Duties
You represent, warrant and agree that you will not, directly or indirectly: (a) falsify or misrepresent any information regarding your identity or intentions with respect to any matter in connection with the Site; (b) post, publish, transmit, distribute, or upload any information or materials through the Site that is unlawful, obscene, lewd, sexually explicit, derogatory, abusive, threatening, discriminatory with respect to race, religion or gender, or is otherwise inflammatory, offensive or objectionable; (c) post, publish, transmit, distribute, or upload any information or materials through the Site that contains a virus, or any other harmful software code or programming routine, that could impair operation or function of the Site or access of others who may, do or will access, browse or use the Site; (d) post, publish, transmit, distribute, offer or upload any information or materials through the Site that is (in whole or part) unlawful, false, deceptive, misleading, fraudulent, or otherwise offensive or objectionable, including (without limitation) any information, document, communication or transmission that constitutes, affirms, encourages or supports the commission of any illegal activity or any violation of any local, state, national or applicable foreign law, rule or regulation, including (without limitation) any laws that protect the intellectual property, personal or privacy rights of any person or entity; (e) post, publish, transmit, distribute, or upload any information, content, documents or materials through or in connection with the Site that in any way violates any patent, copyright, trademark or any other proprietary intellectual property rights of others; (f) post, publish, transmit, distribute, or upload any information, documents, content or materials through or in connection with the Site that violates any legal, property, intangible, confidentiality or privacy rights of others; and (g) post, publish, transmit, distribute, or upload through or in connection with the Site any bulk e-mail solicitations, chain letters, solicitations, advertisements, pyramid schemes or any other unsolicited communication, including, without limitation, spamming those who access, browse or use the Site.
You are prohibited from violating or attempting to violate the security of the Site, or any third party network, system, server, or account, including, without limitation, engaging in any of the following activities: (a) accessing data, folders, information, content, materials, servers, accounts, databases, etc. which you are not authorized to access, (b) impersonating our personnel (or any other person or entity) or engaging in any other pre-texting, (c) attempting to (i) probe, scan or test the vulnerability of a system, server, account or network, or (ii) breach security, validation or authentication measures of any of the foregoing, (d) attempting to interfere with, disrupt or disable service or access or use of the Site to or for any user, host, server, account or network, including, without limitation, via means of overloading, "flooding," "mailbombing," "denial of service" attacks, or "crashing", (e) forging any TCP/IP packet header or any part of the header information in any e-mail or posting, (f) taking any action in order to obtain services to which you are not entitled, or (g) attempting to utilize another party's account name or persona without first obtaining authorization from that party. You are also prohibited from attempting any action designed to circumvent or alter any method of measuring or billing for the Site for any User or Paying User. Violations of these policies and the Site’s security may result in civil or criminal liability for the offending party.
Fair Usage Policy
Company endeavors to protect against egregious use of the Site, and its network and facilities. Infrascale will monitor your usage to ensure compliance with our fair usage policy and will ensure you are not using the software and services provided in our Site excessively, as determined in Infrascale’s sole discretion. Currently the usage range per customer is estimated well below 500GB of online storage space. In the event your usage of the Site exceeds 500GB you may, in Infrascale’s discretion be subject to additional usage fees. Generally, if the network traffic greatly exceeds the average usage of the Site by customers generally, or otherwise results in the blocking or limitation of the Site or any individual product or service, your usage will be deemed excessive.
Additional Representations and Warranties
You hereby represent, warrant and agree that: (a) you have full capacity, right and authority to enter into this Agreement; (b) your use of the Site will not, directly or indirectly, infringe (in whole or in part) any intellectual property rights, including, but not limited to, patent, copyright, trademark, trade secret, mask work or other intellectual property rights, personal or privacy rights of any third party or Company; (c) your use of the Site will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Site will not in any manner, directly or indirectly, disparage, defame, discredit or harm Company or its reputation or goodwill; (e) your entry into this Agreement and/or use of the Site hereunder does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; and (f) your entry into this Agreement and use of the Site is for a bona fide purpose and you are not using the Site to resell any Services or distribute or otherwise use the Services for an improper, illegal or unethical purpose.
You agree to comply, at your sole and own expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement. You will immediately report to us any and all suspected or actual violations of the Agreement by others that you are aware of (or should be aware of, based upon the circumstances).
Company may be subject to regulation by agencies of the government of United States of America and/or foreign governments, including, but not limited to, the United States Department of Commerce, which prohibit export or diversion of certain technical products to certain countries. You represent and warrant that you will comply in all respects with the applicable rules and regulations of any and all agencies of the governments of the United States of America and foreign governments that are applicable to your use of the Site and performance of this Agreement; provided, that in the event or instance of any conflict or ambiguity between the applicable rules and regulations of agencies of the United States of America and those of any foreign government, the former (i.e. of the U.S.A.) shall be given priority and precedence.
Disclaimer of Legal Compliance
YOU EXPRESSLY UNDERSTAND AND ACKNOWLEDGE THAT THE SITE AND ANY MASTER USER SERVICES OR PROGRAMS MAY NOT CONFORM TO, OR MEET WITH, ANY OR ALL APPLICABLE REQUIREMENTS OF THE SARBANES-OXLEY ACT OF 2002 (AS AMENDED), THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) (AS AMENDED), THE GRAMM-LEACH-BILEY ACT (AS AMENDED) AND OTHER LAWS, RULES AND REGULATIONS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SITE AND ITS COMPLIANCE WITH THE AFOREMENTIONED LAWS OR ANY OTHER LAWS, RULES OR REGULATIONS.
Each User must register online through the Site for a User account and select a user name and password. You are solely and exclusively responsible for maintaining the confidentiality and security of such user name and password. Moreover, you are responsible and liable for any and all activities that occur under your account. You agree to notify us immediately in the event of any unauthorized use of your account or any breach of account security of which you become aware or that you reasonably do or should suspect. However, regardless of such notification, we will under no circumstances whatsoever be liable or responsible for any loss that you incur as a result of any unauthorized use of your account (whether such use occurs with or without your knowledge). In addition, you will be responsible in the event that we (or any third party) incurs any losses or damages whatsoever as a result of your account (whether authorized or known, or not, by you). Registration data submitted by you as part of the online account registration process to become a User and/or Paying User shall be subject to section above entitled “Privacy.”
Users that apply to become Paying Users and are thereafter approved by the Company to become Paying Users shall be permitted to use the Paying User Services (as described below) in connection with the Site and shall pay the Paying User Fee (as described below). In order to subscribe for Paying User Services and become a Paying User, you must affirmatively apply for and register as a Paying User, provide your payment details (including, but not limited to, your credit card information) and electronically accept this Agreement as it pertains to Paying Users as well as Users.
Paying User Services
Paying Users will receive access to the following services (the “Paying User Services”): access and use of administrative panel and a Paying User administrator account to facilitate usage of the Site among Users that have authorization by the Paying User for usage of the Site (such Users shall be known as “Authorized Users”). Generally, Authorized Users shall have rights and privileges substantially similar to Users, provided that Authorized Users shall also be bound by this Agreement in the same manner as Users; provided, further that each Paying User shall be responsible and liable for the compliance of its Authorized Users with the provisions of this Agreement. For the avoidance of doubt, all Authorized Users that browse, use or access the Site shall be legally bound to this Agreement in the same manner as other Users.
An Authorized User may receive access to premium, enhanced or additional services and functionality (“Added Services”) through or in connection with the Site, based on the agreement of the applicable Paying User with Company, however, other than the ability to access such Added Services, an Authorized User is subject to this Agreement in the same manner as all other Users that are not otherwise Paying Users or Authorized Users.
Paying User Fees
The fee payable by a Paying User shall be a monthly, recurring non-refundable fee as set by the Company and listed on the Site (the “Paying User Fee”) and shall be payable by automatic, pre-authorized charge to the Paying User’s credit card provided to us beginning on the date (“Paying User Date”) that you become a Paying User. Thereafter, the Paying User Fee shall be charged and payable to us on every monthly anniversary of the Paying User Date, and shall be recurring and continuing for the entire Paying User Term regardless of whether the Paying User Term ends earlier or is terminated by either party). No Paying User Fee shall be refundable to you once paid to us or charged by us to your credit card.
In connection herewith, you are responsible for paying any and all applicable taxes (including, without limitation, sales tax, services tax, use tax and value-added tax), duties, levies, charges and excises imposed by any government agency or entity, except for those taxes that may be based on the income of Company. The Company shall have no obligation, responsibility or liability with respect to your aforementioned responsibilities or liabilities to any government agencies or entities.
As part of becoming a Paying User, you will submit to us information for billing and payment purposes, including (without limitation) a valid credit card number with available credit sufficient to pay the Paying User Fee on a monthly basis for the Paying User Term and other information required by us.. All such payment information submitted to us must be current, complete and accurate and you are responsible for updating such information should it become necessary at any time during the Paying User Term. Further, you authorize us to take any reasonable actions needed to verify the authenticity and validity of any credit card number provided to us. Under no circumstances whatsoever will we be liable for any overdraft charges or over-the-limit credit card fees, regardless of our fault or negligence thereof, that are incurred by you.
Paying User Term
The Paying User Term shall begin on the Paying User Date and continue in effect thereafter until such time as terminated by either us or you for any reason (or nor reason) pursuant to the “Termination” section below;PayingPaying Termination of the Paying User Term for any Paying User shall also constitute termination of this Agreement for such Paying User and Authorized Users pursuant to the section entitled “Termination” below.
Trials and Promotions
From time to time, the Company may offer certain trials or promotions to Users or new users. We reserve the right to, in our sole and absolute discretion, to at any time (without any liability thereof) discontinue, modify, suspend, reorganize or terminate any such trials and promotions. Any trial or promotion will be subject to the terms and conditions of such trial or promotion, but in no event whatsoever shall any trial or promotion modify or change any of the terms and conditions of this Agreement (except as is expressly set forth by us in the trial or promotion).
All Company information, materials, content, images, graphics, software, trademarks, logos, service marks provided on or through the Site (collectively the "Proprietary Information") is and are the sole and exclusive property of the Company or are duly licensed by the Company, and may not be used, copied, reproduced, distributed, republished, uploaded, downloaded, displayed, posted or transmitted in any form or by any means without the prior express written consent of the Company. The Proprietary Information, including (without limitation) all HTML code, server-side code, XML code, and compilations of meta tag key words, specification and trade name data, newsletters and publications, press materials, product and service descriptions, testimonials and all similar data and information, is exclusively owned or duly licensed by the Company, and is and shall, to the maximum extent allowed by applicable law, be protected by copyright and trademark laws and international treaty provisions. To the extent that the Proprietary Information is also covered by copyright law (and you are hereby advised that much or all of the Proprietary Information is copyrighted), violators are given notice that any such violations may result in severe civil and criminal penalties. Violators of this paragraph will be prosecuted to the maximum extent possible. Users of the Site shall have no right to the Proprietary Information. COPYING OR REPRODUCTION OF THE PROPRIETARY INFORMATION, INCLUDING, BUT NOT LIMITED TO, FILELOCKER SOFTWARE OR CONTENT, TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. Proprietary Information also includes, without limitation, information, materials, content, images, graphics, software, trademarks, logos, service marks licensed or made available to Company by third parties.
Except as expressly set forth herein, nothing on the Site or in this Agreement is intended to grant any rights (including, without limitation, under or with respect to any patent, mask work right, copyright, trademark, title, interest in products or trade secret of Company) to you. All such rights shall remain the sole and exclusive property of the Company and you shall gain no interest, right or title therein by entering into or performing this Agreement. Further, nothing contained on or through the Site or in this Agreement should be construed as granting (whether express, by implication, estoppel or otherwise) any license or right to use any intellectual property, trademarks, copyrights or other proprietary information (or the Proprietary Information) displayed on or through the Site. The absence of a product or service name or logo anywhere in the text of the Site does not constitute a waiver of any trademark or other intellectual property rights concerning that name or logo. UNDER NO CIRCUMSTANCES WHATSOEVER MAY ANY USER REVERSE ENGINEER, DECOMPILE, OR OTHERWISE ATTEMPT TO DECIPHER THE SITE OR ITS SERVICES OR ANY OTHER ASPECT OF THE COMPANY’S TECHNOLOGY, INTELLECTUAL PROPERTY, PRODUCTS, SERVICES OR PROPRIETARY INFORMATION.
Notification of Infringement
Company will, in appropriate circumstances, terminate the access and use of the Site of Users who infringe the rights, security or property of others. If any individual or entity believes that his, her or its rights, security or property has been used or copied in a prohibited manner (or otherwise infringed) through or in connection with the Site, please provide our Infringement Agent a written notice containing the full details of such infringement and the action requested of the Company. Our Infringement Agent may be contacted by providing a written notice to us as described in the section entitled “General” below, with a copy to the same address and clearly marked on the envelope or cover of the notice as “Attn: Infringement Agent”.
The Company does not assume responsibility for verifying the content, materials, documents and information passed through or accessed via or in connection with the Site. The Company is not responsible for any damages, losses, expenses or other injuries incurred by any User as a result of, relating to, or in connection with, any content, materials, documents and information transmitted, distributed or uploaded through or in connection with the Site.
The Site may become unavailable due to routine maintenance or malfunction of computer equipment or for other reasons, and in any such instance, may result in damages to your systems or operations; we shall no liability whatsoever to you under any such circumstance. You shall be solely and wholly responsible for ensuring that any information, documents, materials or content obtained through or in connection with the Site (i) does not contain any virus or other computer software code or subroutine designed to disable, erase, impair or otherwise damage your systems, software or data, and (ii) that are lawfully and properly used, uploaded, shared or accessed by you, are backed up or stored on your own systems or servers. You expressly agree and acknowledge that you are not relying on us to perform any backup of your content, information, materials or documents.
Links to Third Parties
The Site may contain links and pointers to Internet sites maintained by third parties. The Company does not operate or control in any respect any information, products or services on such third-party sites. Third-party links and pointers are included solely for the convenience of Users, and do not constitute any endorsement or verification thereof by the Company. You expressly agree to assume sole and whole responsibility for use and access of third party links and pointers. The Company expressly disclaims any and all liability and responsibility for third party links and pointers and the content of any third party websites, services or software. Furthermore, you are directed to take any and all precautions to ensure that third-party websites, services and software are free of such harmful items as (without limitation) viruses, worms, trojan horses and other items of a destructive nature. The Company shall have no duty whatsoever to investigate, evaluate, recommend or otherwise provide information with respect to any third party website, services or software.
Links to Us
Unless another party has entered into a written agreement with the Company, a party may only provide a hypertext link to the Site on another web site, if such hyperlink complies with ALL of the following conditions: 1) the link must be a text-only link clearly marked as www.filelocker.com ; 2) the link must "point" to the URL "http://www.filelocker.com" and not to any other pages within the site; 3) the link, when activated by a user of the Site, must display the Site full-screen and not with a "frame" on the linking web site; and 4) the appearance, position and other aspects of the link must not be such as to directly or indirectly damage or dilute the goodwill associated with the name and trademarks of the Company and the Site, and must not create the false or misleading appearance that the Company or the Site is associated with, or endorses or sponsors, the linking web site. The Company may selectively revoke its consent to any link at any time (for any reason or no reason) in the Company's sole and absolute discretion.
Disclaimer of Warranties
THE SITE AND ALL INFORMATION, SERVICES, CONTENT AND MATERIALS THEREON AND THEREWITH ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. TO THE FULLEST AND MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT: (1) THE INFORMATION, SERVICES, MATERIALS OR CONTENT ON THE SITE IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THE SITE OR THROUGH THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (3) ANY DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SITE IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION.
Limitation of Liability
NOTIWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT, AND UNDER NO CIRCUMSTANCES, WHATSOEVER (AND REGARDLESS OF THE PURPORTED THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) WILL InfraScale BE LIABLE (EVEN IF INFRASCALE KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR: (1) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, THE SITE, ANY INFRASCALE SERVICES OR THE RELATIONSHIP BETWEEN YOU AND INFRASCALE; OR (2) AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, THE SITE, ANY INFRASCALE SERVICES OR THE RELATIONSHIP BETWEEN YOU AND INFRASCALE, WHICH EXCEEDS THE AMOUNT ACTUALLY PAID BY YOU TO INFRASCALE TO ACCESS AND USE THE SITE (IF YOU ARE A MASTER USER), OR, IF YOU HAVE NOT PAID TO USE THE SITE, THE TOTAL AMOUNT OF $25.00 (TWENTY-FIVE UNITED STATES DOLLARS). Each of you and us expressly acknowledge and agree that the limitations of liability set forth in this paragraph are an essential element of this Agreement, and in the absence of such limitations, the economic terms of this Agreement would have been substantially different than provided herein and/or the parties would not have entered into this Agreement.
You will, at your own expense, defend, indemnify and hold harmless the Company, its parents, subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, agents, representatives, contractors, employees and customers (each, an “Indemnitiee”, and collectively, “Indemnitees”) from and against any and all loss, cost, expense, damage, claim, demand, or liability, including (without limitation) reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by, or demanded of, an Indemnitee, that, directly or indirectly, arises out of, results from or occurs in connection with: (a) your negligence, bad faith or willful misconduct; (b) your breach of any of the provisions of this Agreement; (c) your violation of any applicable law, rule or regulation; (d) (i) infringement by you of any intellectual property, proprietary or other rights of any third party, including (without limitation) any patent, copyright or trademark, (ii) unlawful disclosure, use, or misappropriation of a trade secret by you, or (iii) violation of any other third-party intellectual property right, or other property or personal right of any person or entity; or (c) your use of the Site or any InfraScale service, software or website, in any manner whatsoever. We reserve the right, at our own cost and in our sole and absolute discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses, and reimburse our reasonable costs and expenses (including, without limitation, reasonable attorney and professional fees) in connection with, relating to or arising from our defense in such matter.
Changes or Specialized Modifications
The Company may, in its sole and absolute discretion, modify or change any or every aspect of the Agreement at any time (for any reason or no reason), effective immediately upon posting such modifications or changes (or a revised version of this Agreement incorporating such modifications or changes therein) on or through the Site. Please periodically consult the end of this Agreement to determine when the Agreement was last revised. You agree to periodically review this Agreement to ensure that you are in compliance with any ongoing changes or modifications that are made to the Agreement. Your continued use of the Site after any such modifications or changes are posted will constitute your complete and unequivocal acceptance of such any modifications or changes to the Agreement. The Company reserves the right, but has no obligation whatsoever, to modify or change the Agreement as it applies to any specific User or Paying User, provided that any and all such special modifications must be in writing and signed by and between the Company and the applicable User or Paying User. Any specialized modifications so made shall apply exclusively and only to the User or Paying User that is a party to such written agreement.
This Agreement shall remain effective until terminated (i) by us at any time upon notice thereof to you, or (ii) by you upon ten (10) business days’ prior written notice to us. Termination of this Agreement for Paying Users shall be governed by the provisions set forth above regarding the Paying User Term.
Upon any termination or expiration of this Agreement, any and all provisions and obligations, which are of a continuing nature, shall survive, including (without limitation) the sections titled Proprietary Information, Indemnification and Limitation of Liability.
If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (i) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (ii) the remaining provisions of this Agreement will be unaffected thereby and will continue to remain in full force and effect at all times.
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of law provisions thereof. You expressly agree that any controversy, dispute or claim (“Litigation”) arising out of, relating to, or in connection with, this Agreement or the Site, or the alleged breach thereof, or relating to our activities or services or to us otherwise under this Agreement, shall be settled by confidential binding arbitration in Los Angeles County, California, in accordance with the applicable rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site or this Agreement must be filed within one (1) year after such claim or cause of action arose or was reasonable discovered, whichever is later, or be forever barred. In the event of any Litigation, both parties expressly and irremovably consent to the exclusive venue and personal jurisdiction in Los Angeles County, California. In the event of any Litigation arising from, related to or in connection with this Agreement or the Site, the prevailing party thereof shall be entitled to recover its reasonable expenses, including (without limitation) attorneys’ fees and the costs of litigation and arbitration. The agreement to arbitrate in this paragraph shall not prevent Company from seeking redress in any court of competent jurisdiction to protect its Proprietary Information or intellectual property, nor shall it prevent either party from enforcing this agreement to arbitrate or enforcing any judgment in any court of competent jurisdiction.
Unless otherwise stated herein, any notices hereunder shall be in writing and be delivered by hand, mail (as specified below), fax, or email to the persons and at the addresses as set forth herein (for Company, as provided in this paragraph, and for you, as provided in your account details, as provided by you to us) and shall be deemed given upon (i) posting of such notice on the Site; (ii) delivery if by hand, (iii) three (3) business days after mailing if by certified mail, return receipt requested, or (iv) confirmation of transmission in the case of fax or email. Either party may change its address for receipt of notice to the other party by delivering notice of such change pursuant to this paragraph.
999 N. Sepulveda Blvd., Suite 100
El Segundo, CA 90245
United States of America
Attn: Legal Notices
Company will not be liable for any failure to perform acts due to causes beyond its control (including, without limitation, electrical outage, Internet Service Provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war or Acts of God). If any such circumstances occur, Company shall provide reasonable notice to you of the same and the time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.
Neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred (in whole or in part) by you without the prior express written consent of Company. Any attempted assignment by you in violation of this paragraph shall be null and void. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns. Company may freely assign or transfer (in whole or in part) this Agreement with or without notice thereof to you.
This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which will be deemed a single agreement; provided, that your written or electronic signature is not necessary to manifest your assent or acceptance of this Agreement, and your use of the Site as discussed herein shall in and of itself constitute such assent and acceptance. This Agreement may be accepted and executed in the manner provided herein and such acceptance as provided herein shall constitute a valid and legally binding agreement.
The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement. This Agreement shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel.
Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party.
The provisions of this Agreement are intended solely for the benefit of Company and you, and shall create no rights or obligations enforceable by any other party.
The rights and remedies of Company under this Agreement are cumulative and may be exercised singularly or concurrently in each and every instance. You acknowledge and agree that any actual or threatened breach of any of the provisions contained in the paragraphs titled Intellectual Property and/or Proprietary Information herein may result in immediate, irreparable and continuing damage to Company for which there is no adequate remedy at law, and Company may apply to any court of competent jurisdiction for immediate equitable relief (including, without limitation, specific performance or injunctive relief) without the need for posting of any bond.
Failure by Company to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision, unless (and only to the extent) that such waiver is in writing and signed by a duly authorized representative of Company.
This Agreement contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof. Except as provided in the paragraph titled “Changes or Specialized Modifications”, any modification, addendum, or amendment to this Agreement will not be effective unless the same is in writing and signed by duly authorized representatives of both parties hereof.
This Agreement was last revised on November 13, 2012.
Copyright © 2012 Infrascale, Inc. All Rights Reserved.