OnTheSystem™ TERMS OF USE AGGREEMENT
This OnTheSystem™ TERMS OF USE AGREEMENT ("Agreement") is made between tsWB STRATEGIES, INC., an Illinois corporation ("Company") and any person (collectively "you", "your" or "I") who executes this Agreement in conjunction with registering with Company, ordering or using any online, offline or intranet software services provided by Company, purchasing or using any products provided by Company, obtaining any software or documentation provided by Company, obtaining any training services whether online, in-person, live or recorded that is provided by Company and/or signing up as a affiliate marketer (Collectively referred to as “Services”) through the Company's operated website(s) including but not limited to www.onthesystem.com, www.onthesystem.net, www.winbig.org, www.supergrowth.org,
www.winbig360.com, www.idea231.com, and www.thinksmallwinbig.com
BY CLICKING THE ACCEPTANCE BUTTON, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED AND YOU MAY NOT ACCESS OR USE ANY PART OF COMPANY’S SOFTWARE, DOCUMENTATION OR PARTICIPATE IN ANY SERVICES OFFERED BY COMPANY.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS, ORGANIZATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST SELECT THE BUTTON INDICATING NON-ACCEPTANCE AND YOU MAY NOT USE THE SERVICES.
YOU MAY NOT USE THE SERVICES UNTIL YOU OR AN AUTHORIZED ENTITIY OR INDIVIDUAL WHO HAS GRANTED YOU ACCESS, HAS READ AND ACCEPTED ALL THE TERMS OF THIS AGGREEMENT AS INDICATED ABOVE. IF YOU HAVE NOT ACCEPTED THE TERMS OF THIS AGGREEMENT, YOU ARE RESPONSIBLE FOR UNDERSTANDING AND COMPLYING WITH THE TERMS OF THIS AGREEMENT.
BY USING ANY OF THE SERVICES OF COMPANY YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS OF THIS AGREEMENT.
1. Services Provided by Company
1.1 Permitted Uses and Restrictions on Use
The online, offline or intranet based Services of Company allows you to store, retrieve, organize and share data. In order to use the online, offline or intranet Services of Company, you are responsible at your own expense to acquire access to the World Wide Web, either directly or through devices that access web-based content, and to pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, whether for accessing Company’s online, offline or intranet Services, including a computer and modem or other access device. You shall not attempt to access any other of Company’s systems, programs or data that are not made available for public use.
1.2 General Practices Regarding Use and Storage
You acknowledge that Company may establish or revise from time to time general practices and limits concerning your use of the Services, including without limitation, establishing the maximum amount of storage space you have at any time, as well as limiting the amount of bandwidth you may use with the Services in a given period of time.
For purposes of this Section 1.2, bandwidth is defined as the total amount of data downloaded from and uploaded to the Company or Company sub-contracted server(s) in a given period of time. In addition, Company may limit without notice the volume of e-mail forwarding or file downloading from Company or Company sub-contracted server(s) in response to unreasonable activity (such as spamming or hosting a publicly accessible exchange of large data files).
You agree that Company has no responsibility or liability for the deletion, corruption, or alteration of, or failure to store any messages and other communications or other information, data, text (including but not limited to names of files, files, documents, databases, directories and groups/workgroups of the same), software, music, sound, photographs, graphics and video provided by you (collectively referred to as "Content") and maintained or transmitted by the Services.
You acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
1.3 Links
The Company, other users of Company Services, or third parties may provide links to other World Wide Web sites or resources. Because Company has no control over such sites and resources, you acknowledge and agree that Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Company shall 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 Content, goods or services available on or through any such site or resource.
1.4 Privacy
It is the policy of the Company to respect your privacy. Company will not monitor, edit or disclose any personal information about you or your account, including its contents, without your prior consent unless Company has a good faith belief that such action is necessary to: (i) comply with legal process or other legal requirements of any governmental authority; (ii) protect and defend the rights or property of Company; (iii) enforce this Agreement; (iv) protect the interests of users of the Site other than you or any other person; (v) facilitate research projects that assess the value of Company Services; or (vi) develop new or improved general or industry specific Services. (vii) maintain the online, offline or intranet software databases by Company or Company sub-contracted programmers.
Your IP address is transmitted and may be recorded with each message you send from the Site. Company does provide certain information collected from and relating to you to third persons such as researchers, Company or Company sub-contracted software developers, technicians, support centers and advertisers.
Questions about the Company’s Privacy Policy, our information practices or other aspects of privacy should be directed to info at onthesystem.com.
1.5 Account Terms
You must be a human. Accounts registered by “bots” or other automated methods are not permitted. You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process. Your login may only be used by one person – a single login shared by multiple people is not permitted. You must create a separate login for every individual person you give access to Company Services. You are responsible for maintaining the security of your account and password. Company cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You are responsible for all Content posted and activity that occurs under your account (even when Content is posted by others who have accounts under your account).
API Terms:
Customers may have access to their account data via an API (Application Program Interface). Any use of the API, including use of the API through a third-party product that accesses Company online, offline or intranet Services, is bound by the terms of this Agreement plus the following specific terms:
(i) No Liability
You expressly understand and agree that Company shall not be liable 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 Company has been advised of the possibility of such damages), resulting from your use of the Company or third-party products that access data via the API.
(ii) Excessive Usage of API
Abuse or excessively frequent requests to Company via the API may result in the temporary or permanent suspension of your account's access to the API. Company, in its sole discretion, will determine abuse or excessive usage of the API. Company will make a reasonable attempt via email to warn the account owner prior to suspension.
(iii) Other
Company reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice.
1.6 Technical Support
Technical support is only provided to a limited number of users designated by paying account holders and is only available via email. The number of users a paying account holder can designate to receive email technical support varies with the Service type purchased. You acknowledge that Company reserves the right to change the number of designated users allowed to receive email support per paying account holder at any time, in its sole discretion, with or without notice.
1.7 Third Party Vendors
You understand that Company uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Services.
1.8 Bandwidth
If your bandwidth significantly exceeds the average bandwidth usage (as determined solely by Company) of other Company customers, we reserve the right to immediately disable your account or throttle your file hosting until you can reduce your bandwidth consumption.
2. Your Responsibilities
2.1 Your Registration Obligations
In consideration for your use of the Services, you agree to: (a) provide true, accurate, current and complete information about yourself in the required fields as prompted by the Services’ registration form(s) (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 Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company may suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
2.2 Acceptable Use Policy
You agree to comply with Company's then-current Acceptable Use Policy as posted from time to time. By submitting any Content to Company, you warrant that: (i) you are the owner of such Content, or have been granted all the rights necessary from the owner of such Content to submit such Content to Company, and (ii) the use of such Content by Company and third persons such as researchers or Company sub-contracted software developers and/or advertisers will not infringe or misappropriate the intellectual property rights of or otherwise violate the rights of any third party.
(a) Responsibility for Content
You understand that all Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload or otherwise transmit via the Services. Company does not control the Content uploaded or otherwise transmitted by you or other customers via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content.
(b) Other Conduct
You agree to not use the Services to: (a) upload or otherwise transmit any Content or domain name that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, any Company representative, or misrepresent your affiliation with any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services; (e) upload or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload or otherwise transmit any Content or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (g) upload or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas of the Services that may be designated for such purpose; (h) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (i) interfere with or disrupt the Services or servers or networks connected to the Services; (j) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission and any rules of any securities exchange, and laws regarding the export of technical data; (k) incite or provide instructional information about illegal activities; or (l) conduct raffles, contests, lotteries or sweepstakes, except in those areas of the Services that may be designated for such purpose.
(c) Other
This Policy is subject to all applicable agreements and terms and conditions between you and Company. This Policy is subject to change without notice.
(d) No Resale, Etc. of the Services
You agree not to copy, sell, resell, rent or sublicense (including offering the Services to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Services, use of the Services, or access to the Services. Such restrictions do not apply to the Content you place on the Services. You agree not to access the Services by any means other than through the interface that is provided by Company for use in accessing the Services.
3. Proprietary Rights
3.1 Company’s Proprietary Information
You recognize and acknowledge that any and all of the ideas, systems and materials that Company discloses to you, including, but not limited to the online, offline or intranet software Services, documentation, training, demonstrations and/or other Services (collectively, the "Company Proprietary Information"), is extremely valuable to Company. As a condition of receiving the Company Proprietary Information, you agree that:
(a) Company Proprietary Information is disclosed strictly for your use and benefit. You will not copy, distribute or display any part of the Company Proprietary Information to anyone other than individuals who have a strict "need to know" such information, in connection with their work for you. You will instruct each individual who is given access to the Company Proprietary Information that such individual is to use the Company Proprietary Information strictly in compliance with this Section 3.1(a), and that he/she will not disclose, display or use the Company Proprietary Information with any business or enterprise other than to assist you. You agree to hold harmless and indemnify Company, along with its officers, directors, shareholders, owners, Strategic Partners (defined in Section 4, below) and agents, from any and all losses, damages and liabilities (including actual attorneys’ fees) that Company may suffer as a result of any breach of your duties or obligations under this Section 3.1(a);
(b) You will not display or use any trademark or service mark of Company, except to describe the Services, or as otherwise permitted in this Agreement. You, along with any person who obtains any part of the Company Proprietary Information from or through you, will preserve all copyright notices in their original form, and will not alter or change any such copyright notices.
(c) You will promptly disclose to Company all improvements, changes, modifications, derivatives and ideas based on Company Proprietary Information or copywritten works (the "Improvements"), and all such Improvements will become and remain the exclusive property of Company; provided that you will have the right to use the Improvements, so long as the Improvements clearly indicate that they are based on Company’s system, that Company reserves any and all copyrights, all Company trademarks or service marks are retained, and Company’s complete contact information is included. In any case, you will not have the right to disclose any Improvement to any third party or to use any Improvement for any purpose, except as specifically provided in this Agreement. You will, on Company’s request, execute and deliver such legal documents as may be necessary or appropriate to formally assign to Company any and all rights you may have in any Improvements.
(d) All applicable rights to patents, copyrights, trademarks and trade secrets in the Company Proprietary Information or Improvements or any modifications thereto made at your request are and will remain Company’s property. You will not sell, transfer, publish, disclose, display or otherwise make available the Company Proprietary Information or Improvements or copies thereof to others except as provided in this Agreement. You agree to secure and protect all materials obtained from Company, including, but not limited to the Company Proprietary Information and Improvements, in a manner consistent with the maintenance of Company’s rights therein and to take appropriate action by instruction or agreement with your employees or consultants who are permitted access to the Company Proprietary Information or Improvements pursuant to this Agreement.
3.2 Content Submitted to the Services
You acknowledge that Company does not pre-screen Content, but that Company and its designees, contractors or subsidiaries shall have the right (but not the obligation) in their sole discretion to refuse or to remove any Content that is available via the Services. Without limiting the foregoing, and without notice to you, Company and its designees shall have the right to remove any Content that violates the terms of this Agreement or is otherwise deemed objectionable by Company in its sole discretion. You agree that you must evaluate, and bear all risks associated with the use of any Content including any reliance on the accuracy, completeness, or usefulness of such Content.
3.3 Company Proprietary Rights
You acknowledge and agree that the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and you agree not to disclose such information to any third party without Company's prior permission. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
Company acknowledges that any and all Content, including copyrights, trademarks, and other intellectual property contained in such Content are owned by you. You grant Company the right to use such Content and collect certain data as part of providing and analyzing the Services, to facilitate research projects, improve current Services and develop new Services designed for general use and/or for the industry or industries you operate in.
3.4 Confidentiality
Each party who accesses and uses the Services and Company (together the "parties") shall keep in confidence all of the information maintained by the Services ("Confidential Information"). The parties shall take reasonable steps to prevent unauthorized disclosure or use of the Confidential Information, but in any case not less than those steps it takes to protect its own Confidential Information. The parties shall not disclose Confidential Information to any person or entity other than its affiliated entities, officers, researchers, programmers, employees, consultants, auditors and attorneys who need access to such Confidential Information, and who are subject to confidentiality obligations with such party or Company. The parties shall return (or delete in case of electronic copies of such information) any and all Confidential Information, and all copies thereof, upon the other party's request provided that (i) as to your active Services data and the Content contained therein, you may delete data per standard Services procedures, or only upon e-mail or other written instruction by your account administrator ("Administrator"); and (ii) as to backed-up Services data and the Content contained therein, such Services data and/or Content will be automatically deleted over time pursuant to Company's standard back-up procedures for the Services. The parties shall immediately give notice to the other party of any unauthorized use or disclosure of the other party's Confidential Information.
We may disclose or report Confidential Information in limited circumstances where we believe in good faith that disclosure is required under the law. For example, we may be required to disclose Confidential Information to cooperate with regulators or law enforcement authorities, to comply with a legal process such as a court order, subpoena, search warrant, or a law enforcement request.
Furthermore you acknowledge and agree to permit Company to disclose or report Confidential Information to (i) protect and defend the rights or property of Company; (ii) enforce this Agreement; (iii) protect the interests of users of the Site other than you or any other person; (iv) facilitate research projects that assess the value of Company Services; or (v) develop new or improved Services. (vi) maintain the online, offline or intranet software databases by Company or Company sub-contracted programmers. Your IP address is transmitted and may be recorded with each message you send from the Site. Company does provide certain information collected from and relating to you to third persons such as researchers, Company or Company sub-contracted software developers, technicians, support centers and advertisers.
3.5 Audits
Company shall reasonably cooperate with you (at your cost) or with an applicable regulatory authority in connection with the examination of your data in your Company accounts by such applicable regulatory authority in connection with an audit or other formal proceeding by such regulatory authority.
4. Company Strategic Partners
You acknowledge that Company has disclosed that Company maintains business and financial relationships with various third parties ("Strategic Partners"). Strategic Partners include companies, universities, institutes and independent contractors who refer clients to Company and suppliers whom Company recommends to its clients. You acknowledge that you do not object to Company’s business and financial relationships with the Strategic Partners. You understand that the Strategic Partners do not own or sponsor Company, nor does Company own or sponsor the Strategic Partners.
5. Registered Entities.
If you are a registered entity and permit your affiliates, subsidiaries, employees, and/or any third party located outside of the territorial boundaries of United States to access and/or use the Services and/or your Content, you shall be solely responsible for (i) their acts and/or omissions in connection with their access and/or use of the Services and (ii) ensuring that their access and/or use of the Services are in compliance with the terms of this Agreement, and any and all applicable local laws, rules and regulations. You agree to fully indemnify Company and its affiliates, subsidiaries, licensors, and online service providers (collectively, "Representatives") for any liability, fines, penalties, costs, claims and/or damages incurred by Company and/or the Representatives in connection with any claim related to the access and/or use of the Services and/or your Content by you, your affiliates, subsidiaries, employees or any third-party authorized by you.
6. Modifications to the Services or Agreements
6.1 Modifications to the Services
Company reserves the right at any time and from time to time to modify the Services (or any part thereof) with or without notice. Should Company choose to permanently discontinue the Services, Company (i) will send notification to your Account Administrator via e-mail at least ten (10) days prior to such discontinuance and (ii) will post notification of this decision on the Services web site at least ten (10) days prior to such discontinuance. In such instance, you will be responsible for retrieving your data from the Services during that ten (10) day period. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services, or for any resulting loss or destruction of any Content that you place on the Services. Company may specify from time to time the version(s) of related products required in order to use the Services (e.g. supported browser versions).
6.2 Modifications to the terms of this Agreement
Company may periodically change the terms of the terms of this Agreement. In the event Company modifies the terms of this Agreement, Company will post it to the Company web site and promptly thereafter, notify your Account Administrator via e-mail that such posting has been made. Your continued use of any of the Services after such modification shall constitute your acceptance of the terms of this Agreement with the new modifications. If you do not agree to any of such changes, you may terminate the terms of this Agreement and immediately cease all access and use of the Services. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to the terms of this Agreement. In addition, Company may at any time introduce separate terms of this Agreement for users in certain jurisdictions and require users in these jurisdictions to agree to the separate terms of this Agreement. Company may also require such users to agree that termination of the separate terms of this Agreement and cessation of all access and use of the Services would be their exclusive remedy if they do not wish to comply with the separate Agreement.
7. Fees
7.1 General
You agree to pay any applicable fees for the Services plan described on your Account Page.
7.2 Registration and Fees
Company may offer Users a variety of payment options. You shall inform Company of the option you choose in response to Company's correspondence or upon registration. Fees shall be due and payable to Company by using the payment methods currently accepted. You agree to make all payments in advance on the billing date as displayed in the Company’s correspondence or upon registration for the Services. Company reserves the right to suspend the accounts of Users who fail to make payments on their payment plan(s). All fees are non-refundable, in whole or in part, even if the Services are suspended, cancelled or transferred prior to the end of your monthly or annual plan.
7.3 Payment, Refunds, Upgrading and Downgrading Terms
A valid credit card or debit card or other accepted form of payment is required for automated payment accounts. Free accounts are required to provide a credit card number.
If you initially sign up for Services that offer a free thirty (30) day free trial period and you don't cancel that account within thirty (30) days, your credit card or debit card will be charged monthly starting on the 30th day after your account was initially created. If you cancel prior to the processing of your first invoice on the 30th day, you will not be charged.
An upgrade from the thirty (30) day free trial plan to any paying plan will end your free trial. You will be billed for your first month immediately upon upgrading.
You acknowledge and agree that Services are automatically charged in advance on a monthly basis and are non-refundable. There will be no refunds or credits for partial months of Services, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle.
Downgrading your Services may cause the loss of Content, features, or capacity of your Account. Company does not accept any liability for such loss.
8. Term and Termination
8.1 Term
The terms of this Agreement shall be effective upon registration and thereafter shall continue on a month-to-month basis or annual basis, as applicable, until terminated with (30) thirty days written notice by either party, or until terminated as specified below.
8.2 Termination by You
You are solely responsible for properly canceling your account. An email or phone request to cancel your account is not considered cancellation. You can cancel your account at any time by logging in as the Administrator and clicking on the appropriate links found in the Administration section of your OnTheSystem.net site.
All of your Content will be immediately deleted from the Services upon cancellation. This information can not be recovered once your account is cancelled.
If you cancel the Services before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again. However you agree that you will not receive a pro-rated refund for any days that may have been paid for.
8.3 Termination by Company
You acknowledge and agree that Company in its sole discretion, may suspend or terminate your account and/or deny you access to, use of, or submission of Content for, all or part of the Services, without prior notice and for any reason, including if you engage in any conduct that Company believes: (a) violates the letter or spirit of any term or provision of the terms of this Agreement, (b) violates the rights of Company or third parties, or (c) is otherwise inappropriate for continued access and use of the Services. In addition, Company reserves the right to terminate any account if that account has been inactive for greater than three hundred and sixty five (365) days. You agree that upon termination, we may delete all files and information related to your account and may bar your access to your account and the Services. Company will not provide you access to the most recent data from your account if Company believes that such data violates the rights of Company or third parties. Further, you agree that Company shall not be liable to you or any third-party for any termination of your access to the Services.
9. Warranties and disclaimers; Indemnity; LIMITATION OF LIABILITY
9.1 Online, Offline, Intranet Software Warranty
a. If your computer runs Microsoft Windows 2000 operating system or a later version and you use the FireFox internet browser, Company warrants that all online offline or intranet software will conform, as to all substantial operational features, to Company’s current published specifications and will be free of defects that substantially affect software performance.
b. You must notify Company in writing, within thirty (30) days of delivery of any online, offline or intranet software to you, (including delivery of any subsequent modifications to the online, offline or intranet software), of your claim of any such defect. If Company finds the software defective, then Company’s sole obligation under this warranty is to remedy such defect in a manner consistent with Company’s regular business practices. If you make any modifications to the online, offline or intranet software during this warranty period, this warranty will immediately be terminated.
9.2 Disclaimer
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
THE ABOVE SOFTWARE WARRANTY IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY COMPANY WITH RESPECT TO THE COMPANY PROPRIETARY INFORMATION AND IMPROVEMENTS. COMPANY MAKES AND YOU RECEIVE NO OTHER WARRANTY WITH RESPECT TO THE COMPANY SERVICES, PROPRIETARY INFORMATION OR IMPROVEMENTS, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF COMPANY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE COMPANY SERVICES, PROPRIETARY INFORMATION OR IMPROVEMENTS.
(A) YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXCEPT FOR THE LIMITED WARRANTY MADE BY COMPANY WITH REPSECT TO THE COMPANY PROPRIETARY INFORMATION AND IMPROVEMENTS DESCRIBED IN SECTION 9.1(A) AND (B), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(B) COMPANY AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS OR RESULT IN REVENUES OR PROFITS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. WHILE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO PREVENT UNAUTHORIZED ACCESS TO DATA ENTERED INTO "RESTRICTED FIELDS" WITHIN THE SERVICES, COMPANY AND ITS SUPPLIERS MAKE NO WARRANTY THAT SUCH FIELDS WILL BE SECURE AGAINST SUCH UNAUTHORIZED ACCESS OR OTHER SECURITY BREACHES. COMPANY AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TERMS OF THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 ("HIPAA"), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THIS SERVICES, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW.
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES ARE DOWNLOADED OR OBTAINED AT YOUR OWN DISCRETION AND RISK AND 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 COMPANY OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF THIS AGREEMENT.
(E) YOU ACKNOWLEDGE THAT COMPANY, ITS OFFICERS, DIRECTORS, CONSULTANTS, AGENTS, SPONSORS, STRATEGIC PARTNERS AND PERSONS ACTING IN CONCERT WITH ANY OF THE FOREGOING (COLLECTIVELY, THE "COMPANY PARTIES") HAVE NOT MADE ANY WARRANTY OF SUCCESS OR OF ANY PARTICULAR OUTCOME AND THAT NEITHER COMPANY NOR ANY COMPANY PARTIES IS PRACTICING LAW, ACCOUNTING OR ANY OTHER LICENSED PROFESSION.
(F) YOU ACKNOWLEDGE THAT COMPANY DOES NOT PROMISE TO PRESENT YOU SPECIFIC SOLUTIONS TO PROBLEMS OR ISSUES OF YOUR BUSINESS. COMPANY’S SYSTEM IS NOT EXCLUSIVE OF OTHER METHODOLOGIES OR APPROACHES AND THIS AGREEMENT DOES NOT PRECLUDE YOU FROM RESEARCHING, EVALUATING AND/OR UTILIZING MATERIALS, PRODUCTS OR SERVICES OFFERED BY OTHERS IN THE AREAS OF LEADERSHIP, BUSINESS DEVELOPMENT, MANAGEMENT AND OTHER AREAS RELATED TO YOUR BUSINESS OR ORGANIZATION. MOREOVER, COMPANY ENCOURAGES YOUR EVALUATION AND USE, IN YOUR JUDGMENT AND DISCRETION, OF SUCH OTHER RESOURCES. IT WILL BE YOUR OBLIGATION, NOT COMPANY’S, TO APPLY COMPANY’S SYSTEM AND SERVICES TO ANY SPECIFIC PROBLEM OR SITUATION, REGARDLESS OF WHETHER ANY OF THE COMPANY PARTIES DISCUSSES ANY SUCH SPECIFIC PROBLEM OR SITUATION WITH YOU. COMPANY'S SYSTEMS, SERVICES AND TRAINING IS NOT A SUBSTITUTE FOR HANDS-ON, INTENSE MANAGEMENT CONSULTING. COMPANY CONSULTANTS ARE AVAILABLE, FOR AN ADDITIONAL FEE AND PUSUANT TO A SEPERATE WRITTEN AGREEMENT, TO PROVIDE INTENSE, HANDS-ON BUSINESS CONSULTING SERVICES (PRICES VARY DEPENDING ON THE NATURE OF A CLIENT'S BUSINESS AND ITS ISSUES.)
9.3 Representations and Warranties
You represent that, to the best of your knowledge and belief, your use of the Services don’t directly or indirectly infringe the legal rights of a third party. You further represent and warrant that all information provided by you in connection with your registration is accurate and reliable.
9.4 Indemnity
You agree to indemnify and hold harmless Company, its subsidiaries and affiliates, and their directors, officers, agents and employees ("Indemnitees"), from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content; your use of the Services; your connection to the Services; your violation of the terms of this Agreement; or your violation of any proprietary or other rights of another. You further agree and acknowledge that the Indemnitees are not liable or responsible in any way for any errors, omissions or any other actions arising out of or related to your use of the Services. You further agree to indemnify, defend and hold harmless the Indemnitees from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, your use of the Services, or the placement or transmission of any message, information, software or other materials through the Services by you or users of your account or related to any violation of any term of the terms of this Agreement by you or users of your account.
9.5 Limitation of Liability
(A) YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY AND ITS SUPPLIERS SHALL NOT BE LIABLE 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 COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (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 SERVICES; (iii) UNAUTHORIZED ACCESS TO, ALTERATION OR LOSS OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES.
(B) YOU ALSO AGREE THAT COMPANY WILL NOT BE LIABLE FOR ANY (i) INTERRUPTION OF BUSINESS, (ii) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO ANY COMPANY WEB SITE(S) YOU ACCESS THROUGH THIS SERVICES ; (iii) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, LOSS, DESTRUCTION OR OTHER MODIFICATION; (iv) UNAUTHORIZED ACCESS TO DATA ENTERED IN, OR BREACH OF ANY SECURITY MECHANISMS UTILIZED IN, THE SERVICES OR IN ANY RESTRICTED FIELD THEREIN; OR (v) EVENTS BEYOND COMPANY'S REASONABLE CONTROL.
(C) IN NO EVENT SHALL COMPANY'S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY WILL EXCEED THE AMOUNT PAID BY YOU DIRECTLY TO COMPANY FOR THE SERVICES, TO A MAXIMUM AMOUNT EQUAL TO SERVICES CHARGES DURING THE LAST SIX (6) MONTHS OF THE SERVICES.
9.6 Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 9.2 AND 9.5 MAY NOT APPLY TO YOU.
10 General Information
(A) THE SERVICES ARE NOT OFFERED OR AVAILABLE TO PERSONS UNDER THE AGE OF EIGHTEEN (18). Notices to you may be made via either e-mail, regular mail, overnight courier or facsimile at your contact addresses of record for the Services.
(b) The Services may also provide notices of changes to the terms of this Agreement or other matters by displaying notices or links to notices to you generally on the Services. If you provide notice to Company, such notice shall be sent to: Company tsWB, Inc., 4335 Greenwood St. Skokie, IL 60076, Attn: General Counsel, Legal Dept.; Fax: (847) 675-8213.
(c) The terms of this Agreeement (and any policies linked to them) constitute the entire agreement between you and Company and governs your use of the Services, superseding any prior agreements between you and Company (including, but not limited to, any prior versions of the terms of this Agreement) with respect to their subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate or other Company Services, third-party content or third-party software.
(d) Except as otherwise provided herein, the terms of this Agreement shall be governed by the laws of the State of Illinois, USA without regard to its conflict of law provisions. Except as otherwise provided in the terms of this Agreement, you and Company agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Cook, Illinois, USA. The terms of this Agreement, the Company Privacy Statement, and the Acceptable Use Policy are in English, which shall be the controlling language of the agreement with you with respect to the Services, and you agree that you fully understand the terms of the same. In addition, all enquiries, support related or otherwise, regarding the Services should be submitted to Company in English, and Company will respond to such enquiries in English only.
(e) The terms of this Agreement do not limit any rights that Company may have under trade secret, copyright, patent, trademark or other laws. The failure of Company to exercise or enforce any right or provision of the terms of this Agreement shall not constitute a waiver of such right or provision. If any provision of the terms of this Agreement 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 terms of this Agreement remain in full force and effect. You agree that any claim or cause of action arising out of or related to use of the Services or the terms of this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the terms of this Agreement are for convenience only and have no legal or contractual effect.
(f) Company provides Services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The user of Services ("User") acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
Company and its licensors make no representation that the Services are appropriate or available for use in locations outside the United States of America. If you use the Services from outside the United States of America you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Services, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government for such purposes.
(g) The terms of this Agreement will inure to the benefit of Company and its successors and assigns.
(h) With respect to any acquisition or use of the Services by or for any unit or agency of the United States Government (the "Government"), the Services shall be classified as "commercial computer software" as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the "FAR") and supplements thereto, including the Department of Defense (DoD) FAR Supplement (the "DFARS"). The Services was developed entirely at private expense, and no part of the Services was first produced in the performance of a Government contract. If the Services are supplied for use by the DoD, the Services are delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252-227-7013 (c)(l)(ii)(OCT 1988), as applicable. If the Services are supplied for use by a Federal agency other than the DoD, the Services are restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable. The contractor/manufacturer is tsWB Inc., 4335 Greenwood St. Skokie, IL 60076.
(i) All representations, warranties, indemnification, confidentiality sections including but not limited to Sections 1, 7, 8, and 9 in the terms of this Agreement shall survive the termination of your account or access to the Services.
(j) Independent Contractor. Company is an independent contractor and under no circumstances will any Company Party be considered your employee.
12/04/2007
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