IMPORTANT-READ CAREFULLY: This End-User License Agreement ("Agreement") is a legal contract between you (either (a) an individual user or (b) a business organization) ("you") and Acresso Software Inc. ("Acresso") for the Digital Fastball service (the "Service").
By accessing this site or utilizing the Service, you agree: (i) to be bound by the terms of this Agreement and you represent that you are authorized to enter into this Agreement on behalf of your corporate entity (if applicable) and that are at least 18 years of age. If you do not wish to be bound by the terms of this Agreement, do not access or use the Service. When you accept this Agreement, you also accept the terms of our Privacy Policy located at http://www.acresso.com/company/about/privacy-legal.htm.
1. USE OF THE SERVICE. Your Service account and user ID may not be transferred or sold to another party.
2. FEES AND SERVICES. This Service is provided at no charge on an "as is basis". Acresso may in its sole discretion (i) cease providing the Service; (ii) may change some or all of the functionality of the Service at any time and/or (iii) may assess fees, in which event Acresso will provide notice to your email address registered with the Service. If you elect not to pay fees, then Acresso will close your account and terminate all access to the Service.
3. BREACH. Without limiting other remedies, Acresso may limit your activity, immediately remove your files, warn the user community of your actions, issue a warning, temporarily or indefinitely suspend, or terminate your account if: (a) you breach this Agreement, including any document it incorporates by reference; (b) Acresso is unable to verify or authenticate any information provided; or (c) Acresso believes that your actions may cause financial loss or legal liability or which may violate any intellectual property rights.
4. AVAILABILITY. Acresso does not guarantee continuous, uninterrupted or secure access to the Service, and operation of the Site may be interfered with by numerous factors outside of our control.
5. YOUR INFORMATION. As used in this agreement, "Your Information" means any information you provide to us or other users through the site, or when you sign up for or use the Service. This includes, but is not limited to, information you provide during registration, files you upload, and email you send through the Service. You are solely responsible for Your Information, and Acresso acts solely as a passive conduit for your online distribution and transmission of Your Information.
5.1. Restricted Activities. Your Information and your activities when using the Service, shall not:
a. Infringe any third party's intellectual or proprietary rights or rights of publicity or privacy. Your Information must not include anything you did not create (such as, for example, software, recorded music, photos or video created, recorded or published by someone else) unless you have a license from the owner to upload and store it on our servers and to copy and send it to your recipients.
b. Be obscene or contain child pornography. If Your Information is otherwise adult in nature or harmful to minors, you shall distribute it only to people legally permitted to receive it.
c. Be false, inaccurate or misleading.
d. Be fraudulent or involve the sale of stolen or counterfeit items.
e. Violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, terrorism, consumer protection, unfair competition, antidiscrimination or false advertising).
f. Be defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
g. Contain any viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
h. Create liability for Acresso in any manner, or cause us to lose (in whole or in part) the services of our ISPs or other suppliers.
i. Link directly or indirectly to any website or information that falls into any of the above categories.
j. Be of such a nature that any sale or distribution of it through the Service could cause Acresso, in any manner, to violate any applicable law, statute, ordinance or regulation.
5.2 Right to Monitor and Restrict Access. Acresso reserves the right to monitor communications over the Service and to restrict access to or the availability of material that may be considered, in Acresso’s sole discretion, to be obscene or pornographic, infringing, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable to a reasonable person.
5.3 License. In order to enable Acresso to provide the Service, you grant Acresso a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to exercise the copyright, publicity, and database rights you have in Your Information, in any media now known or not currently known, with respect to Your Information. Acresso will only use Your Information in accordance with our Privacy Policy.
6 WE ARE A CONDUIT
6.1 We Do Not Sell or Resell the Files Sent Through the Service. Acresso is not involved in any commercial transactions between senders and recipients. As a result, Acresso has no control over the quality, safety or legality of the files sent, the truth or accuracy of any emails sent between senders and recipients, the rights of senders to deliver files or the rights of recipients to receive files. Acresso does not transfer legal ownership of items from a sender to a recipient, and nothing in this Agreement shall modify the governing provisions of Ca. Com. Code 2401(2) and Uniform Com. Code 2-401(2).
6.2 Sender Identity. Acresso does not verify the identities of senders. If you receive an email notifying you that you have received a file through the Service, and you do not know the sender, you should send a return email or otherwise try to contact the sender to obtain more information. Do not download a file if the sender or file seems illegitimate or otherwise suspicious.
6.3 Information Control. Acresso does not control the information provided by other users that is made available through the Service. You may find other user's information to be offensive, harmful, inaccurate, or deceptive and as such it is your responsibility to use caution, common sense, and practice safe downloading when using the Service.. By using the Service, you agree to accept all inherent risks and Acresso will not be responsible for the acts or omissions of users through the Service. To the extent you are operating outside the United States of America, you agree to comply with all applicable non-US laws and rules, and all applicable international trade laws and rules.
6.4 Release. Because Acresso acts solely as a conduit, in the event that you have a dispute with one or more senders or recipients, you release Acresso (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
7. ACCESS AND INTERFERENCE You agree that you will not: (i) take any action that imposes, or may impose, in Acresso’s sole discretion, an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content from the Site, other than Your Information and files of which you are designated as a recipient by the sender, without the prior express written permission of Intraware and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Site; or (iv) bypass any measures Acresso may use to prevent or restrict access to the Service.
8 PRIVACY. Acresso does not sell or rent your personal information to third parties without your explicit consent. Acresso stores and processes your information on computers located in the United States that are protected by physical as well as technological security devices. Our current Privacy Policy is available at http://www.acresso.com/company/about/privacy-legal.htm. If you object to your Information being transferred or used in this way do not use the Service.
9 DIGITAL MILLENNIUM COPYRIGHT ACT. It is Acresso’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (the text of which can be found as part of the Copyright Act at the U.S. Copyright Office Web Site, http://lcWeb.loc.gov/copyright/) and other applicable intellectual property laws, which may include removing or disabling access to material that is alleged to infringe. If Acresso removes or disables access to Your Information to comply with the Digital Millennium Copyright Act, Acresso will make a good-faith attempt to contact you so that you may make a counter notification under sections 512(g)(2) and (3) of that Act.
9.1 Notifications. Acresso’s policy is to document all notices of alleged infringement on which we act. A copy of the notice may be sent to a third party who may make it available to the public.
a. Infringement notification. To file a notice of infringement with Acresso, you must provide a written communication (by fax, overnight courier or regular mail -- not by email). You may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights.
b. Counter Notification. The sender of a file that is the subject of an infringement notification may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. To file a counter notification with Acresso, you must provide a written communication (by fax, overnight courier or regular mail -- not email). You may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney. A sample counter notification may be found at www.chillingeffects.org/dmca/counter512.pdf. When Acresso receives a counter notification, we will reinstate the material in question unless we receive, during the period stated in that Act, notice from the person who sent us the original notification that such person has filed a lawsuit seeking a court order to prevent us from reinstating that material. You must provide the following information:
(1) Identify the specific files or material that we have removed or to which we have disabled access.
(2) Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Contra Costa County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection 9.2(a) or an agent of such person.
(3) Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that files or material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
(4) Sign the paper.
(5)Send the written communication to the following address:
Acresso Software Inc.
Attn: Contracts Department DMCA complaints
2860 De La Cruz Boulevard
Santa Clara, CA 95050
OR fax to:
(408) 567-1812
12 NO WARRANTY. THE SERVICE IS PROVIDED SOLELY ON AN "AS IS" BASIS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. ACRESSO SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
13 LIMITED LIABILITY. IN NO EVENT SHALL ACRESSO, INCLUDING ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, THE SERVICE OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). IN NO EVENT WILL ACRESSO LIABILITY, AND THE LIABILITY OF ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE EXCEED THE AMOUNT OF $1,000. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
14 INDEMNITY. You agree to indemnify and hold Acresso including its subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
15 LEGAL COMPLIANCE. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.
16 NO AGENCY. You and Acresso are independent contractors, and no agency, partnership, or joint venture exists or is contemplated hereunder.
17 NOTICES. Except as explicitly stated otherwise, any notices shall be given by either postal mail or overnight courtier to Acresso Software Inc. Attention: Contracts Department, 2860 De La Cruz Boulevard, Santa Clara, CA 95050. Notice to Acresso by email will be invalid. Any notice to you by Acresso will be provided by email at the address registered with the Service. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us during the registration process. Notice (a) by mail shall be deemed given 3 days after the date of mailing, (b) by fax shall be deemed given upon receipt of an electronic confirmation of successful transmission, (c) by overnight courier shall be deemed given upon delivery that is confirmed in writing by the courier service, and (d) by email shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid.
18 RESOLUTION OF DISPUTES. You and Acresso agree that any claim or controversy at law or equity that arises out of or relates to this Agreement, the Service ("Claims") shall be subject to binding arbitration. This does not apply to Claims for injunctive relief; either you or Intraware may seek such relief from a court of competent jurisdiction. Any arbitration shall be in accordance with the rules of the American Arbitration Association (the "AAA"). The arbitration shall take place in Santa Clara County, California, The arbitrator's decision regarding the Claims will be final and binding upon you and Acresso, and the arbitrator's award shall be enforceable in any court having jurisdiction thereof. You understand that you are waiving your right to have a Claim adjudicated by a court or jury. The arbitrator's award shall provide for the prevailing party to recover its reasonable attorney fees and costs from the other party.
19 GENERAL. This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. Sections 2 (Fees and Services) with respect to fees owed for the Service, 7.4 (License), 8.4 (Release), 9 (Access and Interference), 13 (Limited Liability), 14 (Indemnity) and 18 (Resolution of Disputes) shall survive any termination or expiration of this Agreement. The original of this Agreement has been written in English. You waive any right you may have under the law of your country to have this Agreement written in the language of that country.