Digital Fastball User Agreement and License
Effective January 1, 2007
BELOW
ARE THE TERMS ON WHICH YOU MAY ACCESS AND USE THE DIGITAL FASTBALL
SERVICE. THIS INTELLECTUAL PROPERTY LICENSE AND AGREEMENT IS LEGALLY BINDING.
IF YOU ARE ACCESSING THE DIGITAL FASTBALL SERVICE FOR YOUR PERSONAL USE,
THEN BY ACCEPTING THIS AGREEMENT, YOU LEGALLY BIND YOURSELF TO ITS TERMS AND
CONDITIONS. IF YOU ARE ACCESSING THE DIGITAL FASTBALL SERVICE FOR
WORK, THEN BY ACCEPTING THIS AGREEMENT, YOU LEGALLY BIND YOUR COMPANY OR
ORGANIZATION TO ITS TERMS AND CONDITIONS, AND YOU REPRESENT THAT YOU HAVE THE
AUTHORITY TO DO SO.
Welcome
to the intellectual property license and user agreement, including the Privacy
Policy (the "Agreement"), for the Digital Fastball service,
which enables you to deliver, receive, store and organize digital files over
the Internet (the "Service"). The Service is available under the
domain and sub-domains of digitalfastball.com (the "Site"). This
Agreement describes the terms and conditions applicable to your use of the
Service and the Site, which you hereby accept in full by using the Service.
If you do not agree to
be bound by all terms and conditions of this Agreement, do not use or access
the Service or the Site.
The
Service is provided by Intraware, Inc., located at
You
must read, agree with and accept all of the terms and conditions contained in
this Agreement before you may use the Service. We may amend this Agreement
(including the Privacy Policy) at any time by posting the amended terms on the
Site. Except as stated below, all amended terms shall automatically be
effective 30 days after they are initially posted on the Site. We may notify
you via email or otherwise of any amendment of this Agreement. This
Agreement may not be otherwise amended except in a writing signed by you and
Intraware, Inc. This Agreement is effective upon acceptance when you register
for the Service.
This
Agreement includes our Privacy Policy, which is incorporated into this
Agreement by reference. When you accept this Agreement, you also accept
the Privacy Policy. Please take the time now to read the Privacy Policy
before you accept this Agreement.
1
WHO
CAN USE THE SERVICE
The Service is available only to, and may only
be used by, individuals who can form legally binding contracts under applicable
law. Without limiting the foregoing, the Service is not available to children
(persons under the age of 18) or to people who are suspended from using the
Service. Further, your Service account and user ID may not be transferred
or sold to another party. If you are registering as a business, nonprofit or
government entity, you represent that you have the authority to bind the entity
to this Agreement.
2
FEES
AND SERVICES
This version of the Service is provided at no
charge. We may in our sole discretion cease providing the Service at no
cost and may change some or all of the functionality of the Service at any
time.
3
SUBSCRIPTION
PERIOD
Your subscription to use the Service is valid
indefinitely. If we begin charging fees for the Service, or alter those
fees one they begin, we will notify you by using your then-current email
address in the My Account area of the site in advance of requiring payment to
continue use of the Service, at which time you will be under no obligation to
purchase a paid subscription. We may immediately terminate your subscription in
accordance with Section 5 (Breach) below. In such event, we will notify
you by email using your then-current email address in the My Account area of
the Site.
4
FEEDBACK
In consideration for our providing the Service
to you, we encourage you to provide feedback to us about the Service.
This feedback may include, but not be limited to, feedback about the Service’s
features, performance, ease of use, pricing and usefulness to you, and how we
can improve it. We may solicit your feedback via email or the Service’s
web site and may ask you to provide the feedback in a specific format.
You will provide the feedback in as timely a manner as possible.
5
BREACH
Without limiting other remedies, we may limit
your activity, immediately remove your files, warn our community of your
actions, issue a warning, temporarily suspend, indefinitely suspend or terminate
your subscription and refuse to provide the Service to you if: (a) you breach
this Agreement, including any document it incorporates by reference; (b) we are
unable to verify or authenticate any information you provide to us; or (c) we
believe that your actions may cause financial loss or legal liability for you,
our users or us. In addition, we reserve the right to terminate the
accounts of repeat infringers of intellectual property rights.
6
AVAILABILITY
Our highest priority is ensuring our users can
quickly and efficiently deliver, receive and organize digital files.
However, we must occasionally make the Service unavailable for maintenance.
We believe our systems and controls are generally effective in preventing
unscheduled outages. However, we may occasionally experience unscheduled
outages of some or all features of the Service. .
7
YOUR
INFORMATION
7.1
"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 we act as a passive conduit for your
online distribution and transmission of Your Information.
7.2
Restricted
Activities. Your Information, and your activities
on the Site or when using the Service, shall not:
a. Infringe any third
party's copyright, patent, trademark, trade secret or other 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
the legal right, such as a license, 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
us 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 of it through the Service could, by your payment of
fees to us for the Service, cause us to violate any applicable law, statute,
ordinance or regulation.
7.3
Right
to Monitor and Restrict Access. We reserve the right, but do not
undertake the obligation, to monitor communications over the Service for
compliance with the terms of this Agreement (to the extent technologically
feasible to do so). We also reserve the right to restrict access to
or the availability of material that we consider, in our sole discretion, to be
obscene or constitute child pornography, infringing, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable.
7.4
License. Solely to enable us
to use Your Information, so that we are not violating any rights you might have
in that information, you agree to grant us 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. We will only use Your Information in accordance with our
Privacy Policy.
8
WE ARE
A CONDUIT
8.1
We Do
Not Sell or Resell the Files Sent Through the Service. Although the
Service enables senders to deliver files to recipients, we are not involved in
any commercial transactions between senders and recipients. As a result,
we have 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.
We do 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), under which legal ownership of
an item is transferred upon delivery of the item to the buyer by the seller.
8.2
Sender
Identity.
We do 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.
8.3
Information
Control.
We do 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. Please use caution, common sense,
and practice safe downloading when using the Service. Please note that there
are also risks of dealing with underage persons or people acting under false
pretense. Additionally, there may be risks dealing with international trade and
foreign nationals. By using the Service, you agree to accept those risks and we
are not responsible for the acts or omissions of users through the Service.
To the extent you are operating outside the
8.4
Release. Because we are a
conduit, in the event that you have a dispute with one or more senders or
recipients, you release us (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."
9
ACCESS
AND INTERFERENCE
You agree that you will not: (i) take any action that imposes, or may impose in our 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 we may use to prevent or restrict access to the Service or
the Site.
10
PRIVACY
We do not sell or rent
your personal information to third parties for their marketing purposes without
your explicit consent and we only use your information as described in the Privacy
Policy. We place great importance on the protection of users' privacy. We
understand that you and your information are among our most important assets.
We store and process 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.digitalfastball.com/privacy.html. If you object to your
Information being transferred or used in this way please do not use the
Service.
11
DIGITAL
MILLENNIUM COPYRIGHT ACT
11.1 Our Policy. It is our
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 we remove or disable access to Your Information to
comply with the Digital Millennium Copyright Act, we 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.
11.2 Notifications. It is our
policy 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 us, you must provide a
written communication (by fax, overnight courier or regular mail -- not by
email) containing the items specified below. Please note that you may be liable
for damages (including costs and attorneys' fees) if you materially
misrepresent that a product or activity is infringing your copyrights. To
expedite our processing of your request, please use the following format
(including section numbers):
(1) Identify in sufficient
detail the copyrighted work that you believe has been infringed.
(2) Identify the material
that you claim is infringing the copyrighted work listed in item (1) above.
(3) Provide information
reasonably sufficient to permit us to contact you (email address is preferred).
(4) Provide information,
if possible, sufficient to permit us to notify the sender of the file that
allegedly contains infringing material (email address is preferred).
(5) Include the following
statement: "I have a good faith belief that use of the copyrighted
materials described above in the Digital Fastball service is not authorized by
the copyright owner, its agent, or the law."
(6) Include the following
statement: "I swear, under penalty of perjury, that the information in
this notification is accurate and that I am the copyright owner or am
authorized to act on behalf of the owner of an exclusive right that is
allegedly infringed."
(7) Sign the paper.
(8) Send the written
communication to the following address:
Intraware, Inc.
Attn: Legal Department – DMCA complaints
OR fax to:
(925) 253-4599
Attn: Legal Department – DMCA complaints
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 us, you must provide a written communication
(by fax, overnight courier or regular mail—not email) containing the items
specified below. Please note that 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 we receive
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. To expedite our processing of your counter notification, please
use the following format (including section numbers):
(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:
Intraware, Inc.
Attn: Legal Department – DMCA complaints
OR fax to:
(925) 253-4599
Attn: Legal Department – DMCA complaints
12
NO
WARRANTY
WE, OUR OFFICERS,
DIRECTORS, EMPLOYEES AND OUR SUPPLIERS PROVIDE THE SERVICE AND THE SITE
"AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY.
WE, OUR OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM
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 EVEN
OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS,
EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS
LIMITED TO THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE
ACTION GIVING RISE TO LIABILITY. 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 us and (as applicable) our 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 Intraware are
independent contractors, and no agency, partnership, or joint venture. We
are not the agent of any sender of material through the Service.
17
NOTICES
Except as explicitly
stated otherwise, any notices shall be given by postal mail to Intraware, Inc.,
Attention: Legal Department,
18
RESOLUTION
OF DISPUTES
You and Intraware agree that any claim or
controversy at law or equity that arises out of or relates to this Agreement,
the Service or the Site ("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
19
GENERAL
This Agreement shall
be governed in all respects by the laws of the State of
20
DISCLOSURES
The services hereunder
are offered by Intraware, Inc., located at