Use of Site
The Site and any necessary software we use in connection with the Site contain proprietary and confidential information that is protected by applicable intellectual property and other laws. User Content contained in sponsor advertisements or information presented to you through the Site or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
Except as set forth in "Other agreements; software, services or access", below, VisualAIM authorizes you to use the Site only only to obtain information about VisualAIM, its products and services in connection your consideration of acquiring such materials or otherwise entering into a business relationship with VisualAIM. Use of the Site for any public or commercial purpose (including, without limitation, on another site or through a networked computer environment) is strictly prohibited. If you make copies of any of Our Materials, you must retain on any such copies all copyright and other proprietary notices contained in Our Materials as provided by us. You may not modify, publicly display, publicly perform, or distribute Our Materials. As between you and VisualAIM, VisualAIM owns the Site. The Site is protected under United States and international copyright laws. Any unauthorized use of the Site may violate copyright, trademark, and other laws. You may not reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Site (including your account name), use of the Site, or access to the Site. You may not access the Site by any means other than through the interface that is provided by us for use in accessing the Site. Without our prior permission, you may not display or use in any manner our trademark and/or service marks (including "VisualAIM").
Other agreements; software, services or access
VisualAIM may provide software products or services under the terms of a separate agreement between you and VisualAIM (each, an "Other Agreement"). VisualAIM's obligations with respect to any product, service, or access that it makes available to you under any Other Agreement shall be governed solely by the Other Agreement under which such product or service is provided and this TOU shall not be deemed or construed to alter the terms of such Other Agreements.
For example, the use of Spatial Key software and services is governed by the terms of the end user license agreement, if any, which accompanies or is included with such materials (the "License Agreement"). You may not install any software that is accompanied by or includes a License Agreement unless you first have agreed to the License Agreement terms. If no end user license agreement accompanies or is included with such software, then such software shall be deemed to be Our Materials hereunder and these TOU shall govern your use of such software, in which case your use of such material is strictly limited to a temporary, revocable right to review such materials in connection your consideration of acquiring such materials or otherwise entering into a business relationship with VisualAIM. FURTHER REPRODUCTION OR REDISTRIBUTION OF ANY SOFTWARE IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT ACCOMPANYING OR INCLUDED WITH SUCH SOFTWARE.
YOUR REGISTRATION OBLIGATIONS
Certain portions of the Site may require registration and provision by you of certain information regarding yourself to us. If you register, you represent that you are at least 18 years old and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You must: (a) provide true, accurate, current and complete information about yourself as prompted by the Site's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
MEMBER ACCOUNT, PASSWORD AND SECURITY
You may receive or create a password and account designation upon completing the Site's registration process. You are responsible for maintaining the confidentiality of the password and account designation, and are fully responsible for all activities that occur under your password or account. You must (a) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
You understand that all User Content, whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such User Content originated. This means that you, and not us, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available via the Site. We do not control the User Content posted via the Site and, as such, do not guarantee the accuracy, integrity or quality of such User Content. You understand that by using the Site, you may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any User Content, including, but not limited to, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the Site.
We may or may not pre-screen User Content, but that we and our designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any User Content that is available via the Site. Without limiting the foregoing, we and our designees shall have the right to remove any User Content that violates the TOU or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. In this regard, you acknowledge that you may not rely on any User Content created by us or submitted to us.
We may access, preserve, and disclose your account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOU; (c) respond to claims that any User Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect our (or our users or the public's) rights, property, or personal safety.
The technical processing and transmission of the Site, including your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
The Site and software embodied within the Site may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by us and/or content providers who provide content to the Site. You may not attempt to override or circumvent any of the usage rules embedded into the Site. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Site, in whole or in part, is strictly prohibited.
OWNERSHIP AND USE OF USER CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SITE
(a) We do not claim ownership of User Content you submit or make available for inclusion on the Website. However, with respect to User Content you submit or make available for inclusion on publicly accessible areas of the Website, you grant us the world-wide, royalty free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such User Content on the Website. The technical processing and transmission of the Website, including your User Content, may involve transmissions over various networks; and changes to conform and adapt to technical requirements of connecting networks or devices, and you consent to such matters.
(b) You may voluntarily provide (in connection with use of the Site, use of our products or otherwise) suggestions, comments or other feedback to Supplier with respect to items or information provided by us on the Site or otherwise. We are not required to hold such feedback in confidence, and such feedback may be used by us for any purpose without obligation of any kind; provided, that we will not disclose the source of specific feedback without your consent; and nothing in this TOU restricts the use by you of such feedback or ideas that you provide to us.
You hereby indemnify and hold us and our subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, consultant and agents harmless from any claim or demand (including reimbursing us any reasonable attorneys' fees incurred by us in the defense of any such claim or demand), made by any third party due to or arising out of User Content you submit, post, transmit or make available through the Site, your use of the Site, your connection to the Site, your violation of the TOU, or your violation of any rights of another. We retain the right to retain counsel of our choosing in our sole discretion. Furthermore, you must cooperate in good faith to assist us in our defense and any settlement negotiations related thereto, and to reimburse us for reasonable settlement amounts, if any.
MODIFICATIONS TO SITE
We may at any time and from time to time to modify or discontinue, temporarily or permanently, the Site (or any part thereof) with or without notice. We shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site.
We may, under certain circumstances and without prior notice, immediately terminate your account, any associated email address, and access to the Site. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOU or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Site (or any part thereof), (e) unexpected technical or security issues or problems, or (f) extended periods of inactivity, (g) you have engaged in fraudulent or illegal activities. Termination of your account may include deletion of your password and all related information, files and content associated with or inside your account (or any part thereof). Further, all terminations for cause shall be made in our sole discretion and we shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the Site.
DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. We shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Site.
The Site may provide, or third parties may provide, links to other World Wide Web sites or resources. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any User Content, advertising, products, or other materials on or available from such sites or resources. We are 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 User Content, goods or services available on or through any such site or resource.
DISCLAIMER OF WARRANTIES
a. YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. WE MAKE NO WARRANTY THAT (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOU.
All payments are non-refundable, and that no refunds will be due to you for any reason, even if, without limitation, you are not satisfied with the Site, you are not able to access the Site, the Site changes, or we freeze, change, or terminate your membership.
LIMITATION OF LIABILITY
WE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (v) ANY OTHER MATTER RELATING TO THE SITE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF MAY NOT APPLY TO YOU.
Except as otherwise expressly provided in this TOU, there shall be no third party beneficiaries to this TOU.
We may provide you with notices, including those regarding changes to the TOU, by either email, regular mail, or postings on the Site. Any notice you desire to sent to us must be sent exclusively by submitting an electronic message through the Contact section of the www.visualaimsoft.com Site (and selecting the appropriate category for your message), unless explicitly instructed to do otherwise in the TOU.
Entire Agreement. The TOU constitutes the entire agreement between both of us and governs your use of the Site, superseding any prior agreements between both of us with respect to the Site. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services, affiliate services, third-party content, or third-party software.
Choice of Law and Forum. The TOU and the relationship between both of us shall be exclusively governed by the laws of the United States and the Commonwealth of Massachusetts without regard to its conflict of law provisions. Your exclusive forum for bringing any claim or cause of action against us is the courts located in the City of Boston, Massachusetts U.S.A. You hereby accept and submit to the personal and exclusive jurisdiction of such courts in any proceeding or action. With respect to any such proceeding or action brought in such courts, you hereby irrevocably waive, to the fullest extent permitted by law: (a) any objection you may have now or in the future to such jurisdiction or venue, and (b) any claim that such action or proceeding has been brought in an inconvenient form. Nothing limits our right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or any other form of relief. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or the TOU must be filed within ninety (90) days (or, if different, the minimum amount of time permitted by law) after such claim or cause of action arose or be forever barred.
Arbitration. Notwithstanding anything herein, if we elect in our sole discretion to resolve any claim through arbitration, you must cooperate fully with and be bound by such arbitration, without further recourse of any kind. The American Arbitration Association ("AAA") shall preside over such arbitration. Such arbitration shall be exclusively governed by the laws of the United States and the Commonwealth of Massachusetts without regard to its conflict of law provisions. All proceedings shall take place in the City of Boston metropolitan area. If there is a conflict between the rules of the AAA and any provision of the TOU, the TOU shall govern. You are responsible for all costs that you incur in the arbitration, including without limitation, expert witnesses or attorneys.
Waiver and Severability of Terms. Our failure to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of the TOU is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOU remain in full force and effect.
No Right of Survivorship and Non-Transferability. Your account is non-transferable and any rights to your account or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or the TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the TOU are for convenience only and have no legal or contractual effect.