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THIS TERMS OF SERVICE ("Agreement") contain the terms and conditions that apply to a company and/or user, as applicable ("User", "you" or "your") of the services (the "Services") made available through the Web site located at (the "Site") and is between you and AccessU2 Mobile Solutions, LLC, a Colorado limited liability company. The Services are provided solely as a convenience to you. Please read this Agreement carefully as it governs your use of the Services.
By clicking on the "I ACCEPT" button, you acknowledge that you have agreed to all of the terms of this Agreement and that you have agreed to become a party to, and legally bound by, this Agreement. If you do not agree to all of the terms of this Agreement, click on the "I DECLINE" button. You will not be able to register for or use the Services if you click on the "I DECLINE" button.
If you have any questions regarding this Agreement, please contact . This Agreement was last revised on April 29, 2009.
WHEREAS, AccessU2 Mobile Solutions, LLC, a Colorado limited liability company, d/b/a AccessU2re™ ("AccessU2"), is a provider of cell phone messaging services which deliver information related to the marketing and sale of real property; and
WHEREAS, you desire to obtain those services on the basis of and subject to the terms of this Agreement; and
WHEREAS, the general application and description of the Services are as follows: to use the services, your customers will (i) dial a toll-free number displayed on a property sign; (ii) enter the property code from the property sign; (iii) choose English or Spanish to receive text property information; and (iv) information related to the property will be sent to your customer's cell phone.
1. DEFINITIONS.
End User means the cell phone user who dials the number provided to you by AccessU2re™ to obtain property information.
Listing means one or more property codes purchased from AccessU2re™ pursuant to this Agreement.
Cell Phone Carrier means a cell phone network operator which is used by the End User.
MMS (also known as Multimedia Messaging Service) refers to a telecommunications standard for sending messages that include multimedia objects (images, audio, video, rich text). MMS is an extension of the SMS standard, allowing longer message lengths and using WAP to display the content.
SMS (Short Message Service) means a communication service standardized in the GSM mobile communication system, using standardized communications protocols allowing the interchange of short text messages between mobile telephone devices.
WAP (Wireless Application Protocol) is an open international standard for application layer network communications in a wireless communication environment. Its main use is to enable access to the Internet (HTTP) from a mobile phone or PDA.
Website or Site refers to AccessU2re™'s website located at www.accessu2re.com.
2. GRANT OF LICENSE. The Services are owned/provided by AccessU2re™. AccessU2re™ hereby grants to you a non-exclusive, non-transferable, non-sublicenseable, world-wide license to use the Services for internal business purposes only subject to the restrictions in this Agreement. AccessU2re™ reserves any rights not expressly granted herein. Except as otherwise provided in this Agreement, you, or the End Users, shall be solely responsible for hardware and interconnections and telecommunications to access the Services.
3. DESCRIPTION OF SERVICES.
(a) General Information. The Following information will apply to each Listing purchased from AccessU2re™ pursuant to this Agreement:
(i) Signage. For each Listing purchased, you will receive one sign. We offer the following two choices: (A) 6" x 24" Exterior Aluminum or Steel Sign, double sided, with rounded corners (holes are drilled at the top and bottom, 1.5" from each edge); or (B) 8" x 24" Coreplast Window Sign, made from Corrugated heavy duty plastic and single sided (attachable to the top or bottom of your own window sign or placed in the window). You will receive your signs within 5-10 business days after your order is received.
(ii) Call in Number. So long as you are not in default under any of the terms of this Agreement, AccessU2re™ will provide you with use of its toll-free access number through which the End Users will obtain the Services (the "Access Call in Number"). The Access Call in Number will be conspicuously displayed on each sign that you receive.
(iii) Data Entry and Property Codes.
(A) Data Entry. You shall be responsible for entering all data related to any real property you wish to advertise using the Services via the Website and AccessU2re™ shall not be responsible for any errors related to your data entry. Such data may include, but is not limited to, a description of the property, photos of the property and any video clips related to the property (such information shall be referred to herein as the "Member Content"). The written description of the property is limited to 160 characters and you can store up to 10 photos of the property; provided, however, that no single photograph can exceed 3 megabytes. AccessU2re™ reserves the right to impose other data limitations as may be necessary from time to time. We will provide you with detailed instructions on entering data related to your properties after you accept the terms of this Agreement and register as a member of AccessU2re™.
(B) Property Codes. For each Listing you will receive a property code that will be displayed on your sign and may be used in print and other types of advertising at your discretion. The End User will receive information on each property by entering the property code for that specific property after calling the Access Call in Number. You will be responsible for assigning a property code for each property on the Website and displaying the correct sign on that Property or in your advertising.
(iv) Text Message Delivery. When an End User dials the Access Call in Number from a property sign or advertisement, he or she will receive a series of text massages which contain the property description, photographs and/or video related to the property which you entered in our Website. The delivery and receipt of these messages are subject to the limitations disclosed in Section 15 below.
(iv) Leads. Each time an End User receives a text message related to one of your properties you will also receive a text message and email which contains the cell phone contact information for the End User as well as the address of the Listing for which the consumer is requesting information (referred to in this Agreement as a "Lead"). For each Listing you will be entitled to receive 25 Leads at no additional cost. You can also view a summary of this activity online by logging into your account on the Website and clicking on the "Activity Report" link.
(v) E-wallet. You will be required to provide an $11.00 deposit to your e-Wallet. This will cover the cost of any additional leads received above the 25 per month which are included in each Listing that you purchase. For each Lead in excess of 25 you will be charged a fee of $0.20 which will be debited against any balance deposited into your e-Wallet account. If you do not have any funds in that account, then you will not receive any leads in excess of the initial 25 leads for your Listing. You will be responsible for monitoring the balance of your e-Wallet account and AccessU2re™ will not be liable for any Leads that are not sent to you because your e-Wallet contains insufficient funds.
(b) Other Services.
(i) Virtual Tour Videos. The Virtual Tour Video is a short video clip that will provide viewers with video footage of your subject property. AccessU2re™ enables you to create and manage your Virtual Tour Videos anytime. The AccessU2re™ platform offers several choices of Virtual Tours including the ability to upload an existing video, creating a Virtual Tour Video on the platform and having a full motion video created through a third party professional video company. Specifics of each Virtual Tour Video are available at .
(ii) Agent Profile Videos. AccessU2re™ will assist you in creating a 30-45 second video of your personal message. Our videographer will come to your office to record the video. AccessU2re™ will provide you with scripting and wardrobe suggestions at no extra cost. You will be responsible for keeping the appointments set with our videographers. You will receive a link for your Agent Profile Video that is available for posting to your website AND a version that is compatible for delivery to mobile devices (subject to the limitations in Paragraph 15), which will be attached to all of your listings at AccessU2re™.
(c) Packages and Pricing. The current pricing for the Services can be viewed at and the terms of that webpage are hereby incorporated herein by this reference. Access U2 reserves the right to offer special pricing packages, discounts or other incentive in its sole and absolute discretion. In the event of a change to our pricing policies you will be requested to accept a revision to this Agreement when you log in to the Website.
4. LICENSE RESTRICTIONS. You may not: (a) copy the Services or any software or programming related thereto; (b) permit other individuals or companies to use the Services; (c) modify, translate, reverse engineer, decompile, disassemble or create derivative works based upon the Services or any software or programming related thereto; (d) rent, lease, transfer, resell and/or or otherwise transfer rights to the Services; or (e) delete or write over any portion of any software relating in any manner to the Services. You also agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, and that you shall not violate or infringe the rights of any third party. Any such forbidden use shall immediately and automatically terminate your license to use the Services without notice.
5. FEES. All charges shall be at the then current prices as described in Section 3(c) above. Upon entering this Agreement, you must choose to pay either by direct charge to a credit or debit card. You hereby authorize AccessU2re™ to charge your credit or debit card to pay for any charges that may apply to your account as they accrue on a monthly or yearly recurring basis, as applicable. You must notify AccessU2re™ of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit AccessU2re™ from charging your account. Failure to make any payment as set forth herein shall be deemed to be a material breach of this Agreement and shall be sufficient cause for the immediate termination of this Agreement by AccessU2re™. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees. All charges shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assesses, other than taxes based on AccessU2re™'s net income.
6. TERM AND TERMINATION. This Agreement may be terminated by any party immediately for any reason or no reason. Upon any termination of this Agreement, you shall immediately discontinue use of the Services. Sections 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 shall survive the termination, cancellation, or discontinuance of this Agreement.
7. YOUR INFORMATION. You agree to provide true, accurate, current and complete transactional information and any information about your company and to maintain and promptly update such information to keep it true, accurate, current and complete.
8. USER NAME AND PASSWORD. You will create a user name and password during the sign-up process. You are fully responsible for maintaining the confidentiality of your user name and password and all activities that occur under your user name and password. Your user name and password are for your use only. You agree to immediately notify AccessU2re™ by e-mail at if any unauthorized use of your password or account or any other breach of security.
9. MODIFICATION DISCONTINUATION OF SERVICES. AccessU2re™ may, in its sole discretion and at any time, modify or discontinue the Services, or any part thereof. For modified services, you may be requested to accept a modification or new Agreement when you login to your account. If you do not accept the amended Agreement, you will not have access to the Services.
10. PROPRIETARY RIGHTS. The Services, including, without limitation, any of AccessU2re™'s Internet operations, design, content, hardware designs, algorithms, software (in source and object forms), user interface designs, other templates and designs, algorithms, architecture, class libraries, and documentation (both printed and electronic), know-how, good will, moral rights, trade secrets and any related intellectual property rights throughout the world, and any derivative works, improvements, modifications, enhancements or extensions thereof shall remain the sole and exclusive property of AccessU2re™, and you shall have no interest in them whatsoever.
11. INCORPORATION OF TERMS OF ACCESS. You agree to follow and be bound by all of the terms and conditions contained in the , which bind all users of the Website and are incorporated into and made a part of this Agreement by this reference.
12. USER CONDUCT. You are solely responsible for the contents of your transmissions through the Services. Your use of the Services is subject to all applicable local, state, national and international laws and regulations.
13. INDEMNIFICATION. You agree to immediately notify AccessU2re™ of and indemnify and hold AccessU2re™, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Services, (including the unauthorized use of your account or any other breach of security known to you), the violation of this Agreement by you, or the infringement by you, or another user using your computer, on any intellectual property or other right of any person or entity.
14. GENERAL DISCLAIMER OF WARRANTIES. You agree that use of the Services is at your sole risk. The Services are provided on an "as is" and "as available" basis, and AccessU2re™ (including, without limitation, its independent consultants, subcontractors, distributors, or any client of AccessU2re™ (collectively, "AccessU2re™ Third Parties")) assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any of your communications, data, or personalization settings. AccessU2re™ and AccessU2re™ Third Parties hereby disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, quiet enjoyment, title, merchantability of computer programs and informational content.
Neither AccessU2re™ nor any AccessU2re™ Third Parties make any warranty that the Services will meet your requirements, or that the Services will be uninterrupted, timely, secure, error or virus free; nor does AccessU2re™ make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy or reliability of any information obtained through the Services or that defects in the software driving the Services will be corrected.
You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and that you will be solely responsible for any damage to a computer system or loss of data that results from the download of such material and/or data.
No advice or information, whether oral or written, obtained by you through the Services shall create any warranty not expressly made herein.
15. DISCLAIMER OF WARRANTIES RELATED TO END USER TECHNOLOGY. Our technology is significantly dependent upon the abilities and technology of the cell phone and Cell Phone Carrier of the End User. The cell phone market and technology related to cell phones is constantly evolving. We use our best efforts to keep up with this changing technology but we cannot guarantee that our services will work with every Cell Phone Carrier or every cell phone in the market. However, we believe our technology work with most if not all of the "major" carriers. We are aware that are services are subject to the following limitations:
(a) Phones with no Text Message capability activated. If an End User has not activated text messages on his or her cell phone (including both SMS and MMS text messages), then they will receive the text descriptions but they will be charged for receipt of the text message description at the prevailing rates charged by that Cell Phone Carrier. They will not be able to receive the photos and or video which may be included as part of our services.
(b) Phones with only SMS Messaging. If an End User has not purchased a data package from his or her own Cell Phone Carrier that enables him or her to reach the internet then such End User may not be able to receive any photographs, videos or web links.
(c) Phones that do not have Data Package Capabilities Activated. If an End User has not purchased a data package from his or her Cell Phone Carrier and does not therefore have the ability to get to the internet, then they will not be able to receive the photos that are standard to the AccessU2re™ platform or the videos that are optional.
16. LIMITATION OF LIABILITY. Neither AccessU2re™, nor its parents, subsidiaries, affiliates, officers and employees, or any AccessU2re™ Third Parties shall be liable for any indirect, incidental, special or consequential damages, resulting from or concerning the use or the inability to use the Services or your failure to comply with this Agreement, including but not limited to, damages for loss of profits, use, data or other intangibles, even if advised of the possibility of such damages. In no event shall the total and aggregate liability of any party under this Agreement for any cause of action or reason whatsoever exceed $5.00. Your sole and exclusive remedy under this Agreement is to discontinue the use of the Services. The liability of any party under this Agreement shall be cumulative and not per incident.
17. NOTICES. Unless otherwise provided herein, notices given by AccessU2re™ to you will be given by e-mail or by conventional mail. Notices will be sent to the e-mail address or mailing address you provide to AccessU2re™ as part of the registration process, or to updated addresses which you provide to AccessU2re™ via notice consistent with this paragraph. Notices given by you to AccessU2re™ must be given by e-mail to or such updated address and number as AccessU2re™ may provide you consistently with this notice provision. Notwithstanding anything herein to the contrary, it is your sole responsibility to update your address for notices hereunder, and notice sent to the e-mail or conventional mailing address last provided by you to AccessU2re™ shall be valid and binding on you regardless of whether such address has been changed, canceled, has expired, has been terminated, or otherwise becomes inoperative.
18. GOVERNING LAW AND FORUM FOR COLLECTION ACTIONS. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado notwithstanding any conflict of laws provisions. If AccessU2re™ is required to take steps to collect any outstanding sums owed pursuant to this Agreement, you will be obligated to pay all costs incurred by it in collection, including reasonable attorneys' fees. In the event of a collection action arising from this Agreement brought by AccessU2re™ you irrevocably and unconditionally: (i) consent to submit to the exclusive jurisdiction of the state and federal courts of Colorado (the "Colorado Courts") for any litigation or controversy related to a collection action for fees due under this Agreement, (ii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum. You understand and agree that all other disputes and/or legal actions which are not related to collection of fees due under this Agreement shall be resolved pursuant to Section 19 below.
19. DISPUTE RESOLUTION. Except for the remedies set forth in Section 18 above, in the event a dispute of any kind arises in connection with this Agreement (including any dispute concerning its construction, performance or breach), the parties to the dispute will attempt to resolve the dispute as set forth in Subsection 19(a) before proceeding to arbitration as provided in Subsection 19(b) of this Article. Each party hereby waives all rights to seek remedies in any court, and the right to jury trial. All documents, discovery and other information related to any such dispute, and the attempts to resolve or arbitrate such dispute, will be kept confidential to the fullest extent possible.
(a) Negotiation. If a dispute arises, any party to the dispute will give Notice to each other party. After Notice has been given, the parties in good faith will attempt to negotiate a resolution of the dispute.
(b) Arbitration. If, within 45 days after the Notice provided in Subsection 19(a), a dispute is not resolved through negotiation or mediation, the dispute will be arbitrated. The parties to the dispute agree to be bound by the selection of an arbitrator, and to settle the dispute exclusively by binding arbitration in accordance with the following provisions:
i. All parties to the dispute will collectively select one arbitrator. If they fail to do so within 45 days after the Notice provided in Subsection 19(a), one or more parties will request Judicial Arbiter Group, Inc., 1601 Blake St, Suite 400, Denver, CO 80202, Tel: 303-572-1919, Fax: 303-571-1115 (the "Arbitrator Group"), to submit a panel of five arbitrators from which the choice will be made or a similar commercial arbitration group if the Arbitrator Group is no longer in existence, chosen by mutual agreement of the parties to this Agreement. The party requesting the arbitration will strike first, followed by alternative striking until one name remains. A similar procedure will be followed if there are more than two parties. The parties may by agreement reject one entire list, and request a second list. If selection by the above method is not completed within 90 days after the Notice provided in Subsection 19(a), or if there are more than four parties, then the arbitrator will be selected by the Arbitrator Group. The arbitrator so selected will then arbitrate the dispute in Denver, Colorado, and issue an award.
ii. To the extent consistent with the provisions of this Subsection 19(b), the arbitration will be conducted under the rules that the Arbitrator Group or the replacement arbitration group or the arbitrator may impose and in accordance with the Colorado Arbitration Act. The arbitrator's decision will be made pursuant to the relevant substantive law of the State of Colorado. The award of the arbitrator will be final, binding and non-appealable. Judgment on the award may be entered in any court, state or federal, having jurisdiction.
iii. The Arbitrator, as part of his final award, within his sole discretion, shall have the power, but not the obligation, to allocate direct and indirect costs and fees against any and all parties as he deems equitable.
20. GENERAL. If any provision(s) of this Agreement is held by a court of competent jurisdiction or other trier of fact to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Any failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing. The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance. This Agreement may be assigned in whole or in part by the AccessU2re™. This Agreement may not be assigned in any manner by you without the express, prior written permission of the AccessU2re™.
The following are terms of a legal agreement ("Agreement") between you and AccessU2re™ Mobile Solutions, LLC, a Colorado limited liability company, d/b/a AccessU2re™ ("Company"). By accessing, browsing and/or otherwise using this web site ("Site"), you acknowledge that you have read, understood and agreed to be bound by these terms and conditions, and to comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations. If you do not agree to all of these terms and conditions, you may not access, browse and/or use this Site. The material provided on this Site is protected by law, including, but not limited to, United States copyright law and international treaties.
These terms of access apply to your access to and use of this Site and do not alter in any way the terms and conditions of any other agreement you may have with Company for products, software, services or otherwise, unless otherwise directed by Company. If you breach any of these terms and conditions, your authorization to use this Site automatically terminates and you must immediately destroy any downloaded or printed materials and discontinue use of any hyperlinks to this Site.
REVISIONS
This Agreement was last revised on April 29, 2009.
USE RESTRICTIONS
Copyright. All Site materials, including, without limitation, text, pictures, graphics and other files and the selection and arrangement thereof are copyrighted materials of Company © 2009, ALL RIGHTS RESERVED, or by the original creator of the material. Permission is granted to display, copy, distribute, and download the materials on this Site for personal, noncommercial use only, provided you do not modify the materials and that you retain all copyright and other proprietary notices contained in the materials. You may not, however, distribute, copy, reproduce, display, republish, download, or transmit any material on this Site for commercial use without prior written approval of Company. You may not "mirror" any material contained on this Site on any other server without prior written permission from Company. Any unauthorized use of any material contained on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
Trademarks. The trademarks, service marks, trade names, and logos (the "Trademarks") used and displayed on this Site are registered and unregistered Trademarks of Company. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of Company, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Company. You acknowledge that the Trademarks used and displayed on this Site are and shall remain the sole property of Company or the Trademark owner. Nothing in this Agreement shall confer any right of ownership of any of the Trademarks in you. Further, nothing in this Site shall be construed as granting, by implication, estoppel or otherwise any license or right to use any Trademark used or displayed on the Site, without the express written permission of Company or the Trademark owner. The misuse of the trademarks displayed on this Site, or any other content on the Site, is strictly prohibited.
Hyperlinks. You are granted a limited, nonexclusive right to create a "hypertext" link to this Site provided that such link is to the entry page of this Site and does not portray Company or any of its products or services in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time for any reason whatsoever. You may not use framing techniques to enclose any Company trademark, logo or trade name or other proprietary information including the images found at the Site, the content of any text or the layout/design of any page or any form contained on a page without Company's express written consent. Links to third party sites on this Site are provided solely as convenience to you. If you use these links, you will leave this Site. Company has not reviewed all of these third party sites and does not control and is not responsible for any of these sites, their content or their policies, including, without limitation, privacy policies or lack thereof. Company does not endorse or make any representations about third party sites or any information, software or other products or materials found there, or any results that may be obtained from using them. If you decide to access any of the third party sites linked to this site, you do so entirely at your own risk. You 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 the use of or reliance on any such third party sites.
Downloadable Materials. Any software, including codes or other materials that are made available to download from this Site, is the copyrighted work of Company and/or its suppliers and affiliates. If you download software from this Site, use of the software is subject to the license terms in the software license agreement that accompanies or is provided with the software. You may not download or install the software until you have read and accepted the terms of the applicable software license agreement. Without limiting the foregoing, copying or reproduction of the software to any other server or location for further reproduction or redistribution is expressly prohibited unless otherwise provided for in the applicable software license agreement in the case of software, or the express written consent of Company in the case of codes or other downloadable materials. Limited Access. Except as otherwise expressly permitted by Company, any access or attempt to access other areas of the Company computer system or other information contained on the system for any purposes is strictly prohibited. You agree that you will not use any robot, spider, other automatic device, or manual process to "screen scrape," monitor, "mine," or copy the Web pages on the Site or the content contained therein without Company' prior, express, and written permission. You will not spam or send unsolicited e-mail to any other user of the Site for any reason. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on Company's infrastructure.
Additional Use Restrictions. You shall not post, transmit, e-mail, re-transmit or store material on or through any of the services provided by Company (the "Services") which, in the sole judgment of the Company: (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, "Persons") or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by you. You shall be responsible for determining what laws or regulations are applicable to its use of the Services. In addition, you may only use the Services in a manner that, in the Company's sole judgment, is consistent with the purposes of such Services. If you are unsure of whether any contemplated use or action is permitted, please contact the Company at. By way of example, and not limitation, the following uses described below of the Services are expressly prohibited:
a. upload, post, e-mail or otherwise transmit any information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (collectively, "Content") that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable. Pornography and pornographic related merchandising are prohibited under all Services, including providing links to pornographic content elsewhere;
b. harm minors in any way;
c. impersonate any person or entity, including, but not limited to, a the Company official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services or develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page);
e. upload, post, e-mail or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements;
f. upload, post, e-mail or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
g. upload, post, e-mail 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 are designated for such purpose;
h. upload, post, e-mail 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. disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Services are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
j. interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
k. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
l. "stalk" or otherwise harass another;
m. promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating "Crush" sites; and
n. effecting security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access.
DISCLAIMER WARRANTY
This Site, including all software, functions, materials, and information, is provided "as is" without warranties of any kind, either express or implied. Company disclaims all warranties, express or implied, including, but not limited to, warranties of quiet enjoyment and non-infringement and implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, quiet enjoyment, merchantability of computer programs, data accuracy, system integration, and informational content. Company does not warrant or make any representations regarding the operation of this Site, the use, validity, accuracy or reliability of, or the results of the use of the materials on this Site or any other sites linked to this Site. The materials of this Site may be out of date, and Company makes no commitment to update the materials at this Site. Company does not and cannot guarantee or warrant that the files available for downloading from this Site, if any, will be free from infection, viruses, worms, Trojan horses, or other code that manifest contaminating or destructive properties. Company does not warrant that this Site, software, materials, products, or services will be uninterrupted or error-free or that any defects in this Site, software, materials, products, or services will be corrected.
LIMITATION OF LIABILITY
In no event will Company, its suppliers or other third parties mentioned at or in this Site be liable for any damages, including, without limitation direct, indirect, special, incidental, or consequential damages, damages resulting from lost profits, lost data or business interruption arising out of relating to the use, inability to use, or resulting from the use of this Site, any web sites linked to this Site, the materials, software or other information contained in any or all such sites, whether based on warranty, contracts, statutes, regulations, tort (including but not limited to, negligence) or any other legal theory and whether or not advised of the possibility of such damages. If your use of the materials or information from this Site results in the need for servicing, repair or correction of equipment or data, you assume all costs thereof. 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.
U.S. GOVERNMENT RESTRICTED RIGHTS
The materials on this Site are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the government is subject to restrictions as set forth in applicable laws and regulations. Use of the materials by the government constitutes acknowledgment of Company's or other owner's proprietary rights in them.
REVISIONS TO THIS AGREEMENT
Company may revise this Agreement at any time without notice by updating this posting. By using this Site you agree to be bound by any such revisions and should therefore periodically visit this Site and page to determine the then current terms and conditions of use to which you are bound.
TRANSMISSIONS
Any material, information or idea you transmit to or post on this Site by any means will be treated as non-confidential and non-proprietary and may be disseminated or used by Company or its affiliates for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products. You are prohibited from posting or transmitting to or from this Site any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, profane material or any other material, including but not limited to any material that could give rise to any civil or criminal liability under both domestic and international law.
APPLICABLE LAWS & MISCELLANEOUS
If any provision(s) of this Agreement is held by a court of competent jurisdiction or other trier of fact to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Company's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing. The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance. This Agreement may be assigned in whole or in part by Company. This Agreement may not be assigned in any manner by you without the express, prior written permission of Company. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado notwithstanding any conflict of laws provisions. In the event a dispute of any kind arises in connection with this Agreement (including any dispute concerning its construction, performance or breach), the parties to the dispute will attempt to resolve the dispute as set forth in Subsection (a) before proceeding to arbitration as provided in Subsection (b) of this Article. Each party hereby waives all rights to seek remedies in any court, and the right to jury trial. All documents, discovery and other information related to any such dispute, and the attempts to resolve or arbitrate such dispute, will be kept confidential to the fullest extent possible.
(a) Negotiation. If a dispute arises, any party to the dispute will give Notice to each other party. After Notice has been given, the parties in good faith will attempt to negotiate a resolution of the dispute.
(b) Arbitration. If, within 45 days after the Notice provided in Subsection (a), a dispute is not resolved through negotiation or mediation, the dispute will be arbitrated. The parties to the dispute agree to be bound by the selection of an arbitrator, and to settle the dispute exclusively by binding arbitration in accordance with the following provisions:
i. All parties to the dispute will collectively select one arbitrator. If they fail to do so within 45 days after the Notice provided in Subsection 1(a), one or more parties will request Judicial Arbiter Group, Inc., 1601 Blake St, Suite 400, Denver, CO 80202, Tel 303-572-1919, Fax 303-571-1115 (the "Arbitrator Group"), to submit a panel of five arbitrators from which the choice will be made or a similar commercial arbitration group if the Arbitrator Group is no longer in existence, chosen by mutual agreement of the parties to this Agreement. The party requesting the arbitration will strike first, followed by alternative striking until one name remains. A similar procedure will be followed if there are more than two parties. The parties may by agreement reject one entire list, and request a second list. If selection by the above method is not completed within 90 days after the Notice provided in Subsection 1(a), or if there are more than four parties, then the arbitrator will be selected by the Arbitrator Group. The arbitrator so selected will then arbitrate the dispute in Denver, Colorado, and issue an award.
ii. To the extent consistent with the provisions of this Subsection (b), the arbitration will be conducted under the rules that the Arbitrator Group or the replacement arbitration group or the arbitrator may impose and in accordance with the Colorado Arbitration Act. The arbitrator's decision will be made pursuant to the relevant substantive law of the State of Colorado. The award of the arbitrator will be final, binding and non-appealable. Judgment on the award may be entered in any court, state or federal, having jurisdiction.
iii. The fees and expenses of the arbitrator, and the other direct costs of the arbitration, will be shared, initially, by the parties to the dispute in such proportion as the arbitrator may determine just and equitable. The Arbitrator, as part of his final award, within his sole discretion, shall have the power, but not the obligation, to allocate direct and indirect costs and fees against any and all parties as he deems equitable.
In the event the arbitration clause above is held invalid or unenforceable, and only in that event, you then irrevocably and unconditionally (i) consent to submit to the exclusive jurisdiction of the state and federal in the County of Denver, Colorado (the "Colorado Courts") for any litigation or dispute arising out of or relating to this Agreement, (ii) agree not to commence any litigation arising out of or relating to this Agreement except in the Colorado Courts, (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum, and (iv) agree the Colorado courts represent the exclusive jurisdiction for all disputes relating to this Agreement.
Contact Information
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