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2. Materials and Services. Through this Site, Company may make available to you including without limitation: (a) certain video, text, images, illustrations, photographs, content, stories, documents and other materials contained or displayed in or made available through the Site (collectively, “Materials”); and (b) various services operated by Company (collectively, “Services”).
3. License. Company and its licensors grant to you a personal, non-exclusive, non-transferable license to: (a) access, view, download, print, use and display Materials; and (b) use any tools and software on the Site (collectively, “Software”) for the purposes set forth on the Site and the payment of any applicable fees by you. In these TOU, all references to the “Site” shall be deemed to include all “Software,” “Materials” and “Services,” unless otherwise expressly indicated. All rights not expressly granted by Company to you are retained by Company, and you may not use the Site and/or any element of the Site in any manner or for any purpose not expressly authorized by these TOU and/or the terms of the Site. The rights granted to you do not include, and are not applicable to, the design or layout of the Site, which are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
4. Restrictions; Removal. You shall not: (a) remove or destroy any proprietary rights marks or legends on or in the Site; (b) modify, enhance, adapt, translate, or create derivative works of the Site; (c) republish, post, transmit, transfer, distribute, assign, sublicense, rent, lease or sell the Site; (d) decompile, disassemble or reverse engineer the Site; (e) reproduce or make copies of the Site; (f) “frame” or “mirror” the Site on any other server or Internet-based device; and/or (g) access, view, download, print, use and/or display the Site for any commercial or other money-making purpose, unless otherwise expressly provided herein or in the Site. You acknowledge that certain elements of the Site are, or may in the future be, licensed to Company by third parties and that the availability of such elements may cease automatically, without notice or liability on the part of Company.
6. Registration and Passwords.
6.1 Some areas of the Site may be accessed and used only by those authorized individuals who are registered and have an account with Company. To open an account, you must complete the registration process by providing Company with current, complete and accurate information as prompted by the registration form, if any. Should Company suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your usage of the Site. Company is entitled to rely on the information you provide and you will be responsible for updating this information to maintain it as current.
6.2 Once you have become an authenticated user, you will choose one or more personal, non-transferable passwords. You are and will be responsible for maintaining the confidentiality of that password, for all activities conducted on and with the Site that make use of that password, and for any charges or fees incurred by the use of that password, including any use you may subsequently contend was not unauthorized by you.
7. Account Information and Data.
7.3 You, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data and Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data, or for any actions or omissions which Company takes in reliance upon your Data.
8. Ownership. Company and/or its licensors own and shall retain all rights, title and interests, including all intellectual property rights, in and to the Site, Materials and Services and all elements thereof. Except for the express licenses granted to you herein, you neither have nor acquire any rights, title or interests in or to the Site, Materials and Services or any element thereof.
9. Marks and Logos. All names, marks, symbols and logos used in connection with the Site are trademarks of Company or other third parties (the “Marks”). Company grants you no license, permission or authorization to reproduce or use any Marks, whether owned by Company or a third party. You agree not to display, copy, redistribute or use any Marks in any manner for any reason without Company’s prior express written consent.
10. Third Party Sites and Materials.
10.1 Please exercise discretion while browsing the Internet using the Site. You should be aware that when you are on the Site, you could be directed to other sites that are beyond Company’s control. There may be links to other sites from these pages that take you outside of Company’s Site. This may include links from advertisers, sponsors, and content partners that may use Company’s logo(s) as part of a co-branding agreement. These other sites may send their own cookies to users, collect data, solicit personal information, or contain information that you may find inappropriate or offensive. In addition, advertisers on the Site, if any, may send cookies to users that Company does not control. Company reserves the right to disable links from third party sites to the Site at any time in its sole discretion.
10.2 Company is not affiliated with, nor does Company endorse or sponsor, any sites on the Internet that may be linked through or to the Site. Company provides any such links to you only as a matter of convenience, and in no event shall Company be responsible or liable for any information, content, products, services or other materials on or available from or through such sites. Company explicitly disclaims any responsibility for the accuracy, content, or availability of information found on sites that link to or from the Site. Company has not taken any steps to confirm the accuracy or reliability of any of the information contained in such third party sites or content. Company does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against Company with respect to such sites and third party content. Company strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.
11. Third Party Transactions. In your use of the Site, you may enter into correspondence with, purchase or sell goods and/or services from or to, or participate in promotions of advertisers or sponsors showing their products and/or services through the Site. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third party. Company shall have no liability, obligation or responsibility for any such correspondence, transaction, exchange, purchase, sale, promotion or other activity conducted between you and any third party. Because Company is not and cannot be a party in your communications, interactions and/or transactions with any third parties on or through the Site, in the event that you have a dispute with one or more such third parties, you acknowledge that your sole and exclusive remedies are against such third parties. You expressly covenant not to sue or otherwise assert any claim against Company in connection with such disputes, and hereby release Company, its subsidiaries, affiliates, officers, directors, agents and employees from any and all claims, demands, suits, expenses, fees (including attorneys’ fees), judgments, penalties, fines and damages 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.
12. Your Additional Responsibilities. You are solely responsible for any and all activities that occur under your account including inputting, maintaining, and managing accurate information and ensuring that you exit or log-off from your account at the end of each session of use. You shall notify Company immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You shall also use your best efforts to stop immediately any copying or distribution of the Site that is known or suspected by you. Company shall not be responsible for any unauthorized access to, or alteration of, your transmissions or Data, any material, information or data sent or received, regardless of whether the data is actually received by Company, or any transactions entered into through the Service or failure to abide by these TOU.
13. Compliance with Laws; Prohibited Activities. You agree to abide by all applicable local, state, and federal laws, regulations, statutes, rules and ordinances, in connection with your use of the Site. Without limiting the foregoing, you shall not use the Site to: (a) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses; (c) transmit or post unlawful, harassing, bigoted, racist, hateful, libelous, abusive, tortious, defamatory, threatening, harmful, invasive of another’s privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) transmit or post any material that may infringe the intellectual property rights or other rights of third parties, including trademark, trade secret, copyright or right of publicity; (e) transmit or post any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs and cancelbots; (f) interfere with or disrupt servers or networks connected to the Site or violate the regulations, policies or procedures of such networks; (g) attempt to gain unauthorized access to the Site or computer systems or networks connected to the Site through password mining or any other means; (h) harass or interfere with another user’s use and enjoyment of the Site; or (i) transmit or post, or promote the transmission or posting of, an illegal or unauthorized copy of another person’s work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devises, or providing pirated content or links to pirated content files. In addition, you agree not to use any device, software, or routine, including but not limited to any viruses, worms, time bombs, to interfere or attempt to interfere with the proper working of the Site or any Service, or to intercept any system, data or personal information from the Site, nor will you take any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure.
14. Your Contributions to the Site.
14.1 Portions of the Site may contain areas, such as online classrooms, chat rooms, bulletin boards and/or message boards, which provide you and other third parties an opportunity to exchange, post, broadcast, publish, circulate, transfer, share, transmit, upload and/or otherwise distribute suggestions, photographs, video and/or sound recordings, articles, links, ideas, feedback, recommendations, opinions and/or other materials and information (collectively, “Submissions”). If you make any Submissions on the Site, you represent and warrant that you have all necessary rights in and to such Submissions and all material they contain, that the Submissions are non-confidential and non-proprietary to you, and that such Submissions do not and will not infringe any proprietary or other rights of third parties or violate any term of these TOU. Any claim lodged with, or damage resulting to Company from your breach of this representation and warranty will be covered by your indemnification obligations under these TOU. The information, advice, facts, opinions or other Submissions on the Site posted by third parties are those of the respective authors and do not necessarily reflect the views of Company or any its agents officers, directors, agents, suppliers, independent contractors or affiliated entities.
14.2 You hereby grant to Company an irrevocable, perpetual, non-exclusive, transferable, sublicenseable, paid-up, royalty-free, worldwide license to reproduce and use all Submissions. Notwithstanding, the foregoing, you will retain all rights, title and interest, in and to all copyrightable works of authorship submitted by you in connection with your use of this Site or any Service (“Your Content”), and you grant Company a non-exclusive, non-transferable, paid-up, royalty-free license to reproduce and use Your Content.
14.3 You acknowledge that Company does not screen, edit or review Submissions in the normal course of its business prior to the appearance of those Submissions on the Site. To the fullest extent permitted by applicable law, Company disclaims all responsibility and liability for Submissions and for any losses, damages, or expenses resulting from their use and/or appearance on the Site. Notwithstanding the foregoing, Company reserves the right to monitor all Submissions and to remove without liability any Submissions that it considers, in its sole discretion, to be offensive, violate any applicable law, violate the right of any third party, or otherwise violate the terms of these TOU. If you discover Submissions on the Site that are offensive, violate any applicable law, violate the right of any third party, or otherwise violate the terms of these TOU you shall provide Company with notice of such Submissions at "email@example.com".
15. Indemnification. You shall indemnify, defend and hold Company, its licensors and information providers, and each such party’s parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with your: (a) access to and/or use of the Site; (b) Submissions, Data and other information provided to Company; (c) breach of these TOU; and/or (c) violation of any applicable law or right of a third party.
16. DISCLAIMER OF WARRANTIES.
16.1 YOU ACKNOWLEDGE THAT: THE SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; THE SITE MAY BECOME INOPERABLE OR OTHERWISE UNAVAILABLE FOR PERIODS OF TIME; MATERIALS AND/OR SERVICES AT THE SITE MAY BE OR BECOME OUT OF DATE AND COMPANY MAKES NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES. COMPANY ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION, DOCUMENTS, SOFTWARE, MATERIALS AND/OR SERVICES WHICH ARE REFERENCED BY OR LINKED TO THIS SITE. REFERENCES TO THIRD PARTIES, THEIR SERVICES AND PRODUCTS, ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
16.2 YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM COMPANY, OR THROUGH OR FROM THE SITE, SHALL CREATE ANY REPRESENTATION OR WARRANTY BY COMPANY.
16.3 THE SITE IS PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY, ITS LICENSORS NOR ANY CONTENT PROVIDERS MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SITE, OR THAT THE USE OF THE SITE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA.
16.4 ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COMPANY, ITS LICENSORS AND CONTENT PROVIDERS.
17. LIMITATION OF LIABILITY AND ACTIONS. REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL COMPANY, ITS LICENSORS OR CONTENT PROVIDERS BE LIABLE OR RESPONSIBLE TO YOU IN CONNECTION WITH THE SITE, OR YOUR USE THEREOF, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THEY ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; (B) LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOST EXPECTANCY, BUSINESS INTERRUPTIONS AND/OR BENEFIT OF THE BARGAIN DAMAGES; AND/OR (C) DIRECT DAMAGES IN AN AMOUNT GREATER THAN FIFTY DOLLARS ($50 USD). ANY CLAIM RELATED TO THE SITE MUST BE INITIATED WITHIN ONE (1) YEAR OF THE DATE YOU KNEW, OR REASONABLY SHOULD HAVE KNOWN, OF THE EXISTENCE OF SUCH CLAIM AGAINST COMPANY.
18.1 Those who choose to access the Site do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You are expressly prohibited from using or accessing the Site from any location in which the Site and/or any Software, Materials and/or Services would violate any law within that jurisdiction. Any diversion of the Software, Materials and/or Services contrary to United States law is prohibited.
18.2 Software from the Site may further be subject to United States export controls. No Software from the Site may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By using the Site, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
19. Term and Termination.
19.1 These TOU, and your right to access and use the Site, are effective until terminated by either you or Company. You may terminate these TOU at any time by discontinuing use of the Site and destroying all materials obtained from or through the Site, and all related documentation and all copies and installations thereof, whether made under these TOU or otherwise.
19.2 These TOU, and your access to and/or use of the Site, may be terminated by Company immediately without notice to you if in Company’s sole discretion you fail to comply with any term or provision of these TOU. Upon termination, you must destroy all materials obtained from or through the Site, and all related documentation and all copies and installations thereof, whether made under these TOU or otherwise.
19.3 Subject to the terms of these TOU, all provisions of these TOU relating to ownership, limitations of liability, confidentiality, indemnification and other provisions which by their nature survive termination of these TOU shall survive termination of these TOU.
20. Michigan Law and Jurisdiction. In order to ensure consistency in the interpretation and enforcement of these TOU and Company’s rights in the Site, these TOU will be governed exclusively by Michigan law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You expressly agree that any litigation arising between you and Company related, in any way, to the Site and/or these TOU, and/or any and all disputes, actions, claims, or causes of action related thereto, shall be initiated and maintained only in the U.S. District Court for the Eastern District of Michigan, Eastern Division, and/or the Circuit Court of the County of Wayne, Michigan. You expressly consent and irrevocably submit to the exclusive personal jurisdiction and venue of such courts.
21. Notice and Procedure for Making Claims of Copyright Infringement.
21.1 Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be submitted to the following Company Designated Agent:
ATTN: Andrew Wight
600 West Cummings Park
Woburn, MA, 01880
21.2 To be effective, the notification must be a written communication that includes the following.
(a) A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
(d) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(e) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
21.3 Company may give notice to Company’s users by means of a general notice on this Site, electronic mail to a user's e-mail address on Company’s records, or by written communication sent by first-class mail to a user's address on Company’s records.
22. Severability. If any provision of these TOU is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent necessary to be valid and enforceable, and all other provisions of these TOU shall remain in full force and effect.
23. Waiver. The failure of Company to enforce any right or provision in these TOU shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions of these TOU.
24. Relationship. The relationship between you and Company is that of independent contract. No joint venture, partnership, employment, or agency relationship exists between you and Company as a result of these TOU or your access to the Site. Neither party has the authority to create any obligations for the other, or to bind the other to any representation, statement or document.