This website (and any and all sub-domains) (the “Site”) and any and all services (“Services”) and software (“Software”) provided through the Site is owned and operated by Local Weather LLC, its parent and subsidiaries (collectively, “Weather Warnings”). For the purposes hereof, the users of the Site, Software and Services are referred to as “you”, “your” or “User” and Weather Warnings is referred to as the “Company”, “we”, “us” or “our”. The following is a legally binding agreement between you and the Company with respect your access and use of the Site, the Software and the Services. For good and valuable consideration (the adequacy and sufficiency of which is acknowledged by each of the parties) of the mutual promises of the parties contained herein, the parties hereby agree as set forth below. All Users will be subject to and bound by these Terms of Use (“Agreement” or “Terms of Use”).
Acceptance of Terms
BY ACCESSING AND/OR USING THE SITE AND ANY OF THE SERVICES AND/OR DOWNLOADING THE SOFTWARE, YOU BECOME A USER OF THE SITE, THE SOFTWARE AND THE SERVICES AND EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPT AND AGREE TO EACH OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO ACCEPT EACH AND ALL OF THE FOLLOWING TERMS AND CONDITIONS AS SET FORTH BELOW, PLEASE DO NOT ACCESS OR USE THE SITE, THE SOFTWARE OR ANY OF THE SERVICES.
Eligibility
You must be at least 18 years old to use the Site, the Software and the Services. By using the Site, the Software, or the Services, you represent and warrant that you are at least 18 years of age. If you are not 18 years of age or older, please do not access or use the Site, the Software or the Services.
Special Notice for Non-English Speakers:
The Storm Alerts Software is suited primarily for the use of English speakers and, therefore, this Agreement is written in English and is addressed to English speakers. If you are not proficient in English and feel that you cannot properly understand this Agreement, we recommend that you either retain the help of an English speaker to help you understand and accept the terms of this Agreement or, alternatively, refrain from installing or using the Weather Warnings Software. In any event, if you choose to install or Use the Weather Warnings Software, you will be bound by this Agreement and the Privacy Policy incorporated herein.
Special Notice for Residents of the State of Alaska, USA:
The Weather Warnings Software may be prohibited by Alaska law. Therefore, by installing or Using the Weather Warnings Software, you represent and warrant that your computer is not located in the state of Alaska. To the extent that our systems are able to recognize that your computer is located in the state of Alaska, we will not enable you to install the Weather Warnings Software.
Privacy
Prior to providing any personal information to us about you on the Site or in connection with the Software or the Services, please review our Privacy Policy (as amended and supplemented from time to time) located at http://severeweatheralerts.net/privacy-policy/ You agree and warrant that any and all of your personal information provided to us is true and correct, including, but not limited to, your name, physical or electronic mailing address, phone number, fax number and other information requested (and you agree to update the same). You understand that all personal information provided by you to us will be subject to the terms and conditions of our Privacy Policy. You acknowledge and agree that we may disclose information you provide if required to do so by any applicable law, or if we, in our sole and absolute discretion, believe that disclosure is reasonable or necessary to (1) comply with any applicable law, requests or orders from law enforcement, or any legal process (whether or not such disclosure is affirmatively required by applicable law); or (2) protect or defend the rights or property of the Company or any third party.
Purchase of Ad Free Version of Software
You may purchase an ad free version of the software for a fee if it is offered on the Company Site. No refunds will be given once you have purchased the ad free version. If we are unable to charge your credit card or your payment cannot be processed for any reason, your Payment will be cancelled and we will not provide you an ad free version of the Software. You are responsible for paying any and all applicable taxes (including, without limitation, sales tax, services tax, use tax and value-added tax), duties, levies, charges and excises imposed by any government agency or entity, except for those taxes that may be based on the income of Company. The Company shall have no obligation, responsibility or liability with respect to your aforementioned responsibilities or liabilities to any government agencies or entities. Notice: No United Kingdom residents may purchase an ad free version of the Software.
Trials and Promotions
From time to time, the Company may offer certain trials or promotions to Users or new users. We reserve the right to, in our sole and absolute discretion, to at any time (without any liability thereof) discontinue, modify, suspend, reorganize or terminate any such trials and promotions. Any trial or promotion will be subject to the terms and conditions of such trial or promotion, but in no event whatsoever shall any trial or promotion modify or change any of the terms and conditions of these Terms of Use (except as is expressly set forth by us in the trial or promotion).
Site Information
The Company does not represent or endorse the accuracy or reliability of, and specifically and expressly disclaims any and all liability related to (whether directly or indirectly), any information displayed, uploaded, posted on the Site, or otherwise distributed or transmitted through the Site by any person or entity. Moreover, the Company in its sole and absolute discretion reserves the right to refuse to post, host or display, and the right to remove or delete, any information from this Site, in whole or in part, for any reason (or no reason) at any time without any notice thereof to you or any other person or entity. Any comments, feedback or advice that you provide to us at, through, in connection with or relating to this Site shall be deemed to be non-confidential and we (and our affiliates) shall have an unrestricted and absolute right to post and publish the same (in our sole and absolute discretion) for any purpose whatsoever.
Your Conduct, Behavior and Duties
You represent, warrant and agree that you will not, directly or indirectly: (a) falsify or misrepresent any information regarding your identity or intentions with respect to any matter in connection with the Site, the Software or the Services; (b) post, publish, transmit, distribute, or upload any information or materials through the Site, the Software or the Services that is unlawful, obscene, lewd, sexually explicit, derogatory, abusive, threatening, discriminatory with respect to race, religion or gender, or is otherwise reasonably disagreeable, offensive or objectionable; (c) post, publish, transmit, distribute, or upload any information or materials through the Site, the Software or the Services that contains a virus, or any other harmful software code or programming routine, that could impair operation or function of the Site, the Software or the Services or access of others who may, do or will access or use the Site, the Software or the Services; (d) post, publish, transmit, distribute, offer or upload any information or materials through the Site, the Software or the Services that is (in whole or part) unlawful, false, deceptive, misleading, fraudulent, or otherwise reasonably disagreeable, offensive or objectionable, including (without limitation) any information, document, communication or transmission that constitutes, affirms, encourages or supports the commission of any illegal activity or any violation of any local, state, national or applicable foreign law, rule or regulation, including (without limitation) any laws that protect the intellectual property, personal or privacy rights of any person or entity; (e) post, publish, transmit, distribute, or upload any information, content, documents or materials through or in connection with the Site, the Software or the Services that in any way violates any patent, copyright, trademark or any other proprietary intellectual property rights of others; (f) post, publish, transmit, distribute, or upload any information, documents, content or materials through or in connection with the Site, the Software or the Services that violates any legal, property, intangible, confidentiality or privacy rights of others; and (g) post, publish, transmit, distribute, or upload through or in connection with the Site, the Software or the Services any bulk e-mail solicitations, chain letters, solicitations, advertisements, pyramid schemes or any other unsolicited communication, including, without limitation, spamming those who access, browse or use the Site, the Software or the Services.
You are prohibited from violating or attempting to violate the security of the Site, the Software or the Services, or any third party network, system, server, or account, including, without limitation, engaging in any of the following activities: (a) accessing data, folders, information, content, materials, servers, accounts, databases, etc. which you are not authorized to access, (b) impersonating our personnel (or any other person or entity) or engaging in any other pre-texting, (c) attempting to (i) probe, scan or test the vulnerability of a system, server, account or network, or (ii) breach security, validation or authentication measures of any of the foregoing, (d) attempting to interfere with, disrupt or disable service or access or use of the Site, the Software or the Services to or for any user, host, server, account or network, including, without limitation, via means of overloading, “flooding,” “mailbombing,” “denial of service” attacks, or “crashing”, (e) forging any TCP/IP packet header or any part of the header information in any e-mail or posting, (f) taking any action in order to obtain services to which you are not entitled, or (g) attempting to utilize another party’s account name or persona without first obtaining authorization from that party. You are also prohibited from attempting any action designed to circumvent or alter any method of measuring or billing for the Site or the Services for any User. Violations of these policies and the Site’s, the Software’s and the Services or security may result in civil or criminal liability for the offending party.
Additional Representations and Warranties
You hereby represent, warrant and agree that: (a) you have full capacity, right and authority to accept these Terms of Use; (b) your use of the Site, the Software or the Services will not, directly or indirectly, infringe (in whole or in part) any intellectual property rights, including, but not limited to, patent, copyright, trademark, trade secret, mask work or other intellectual property rights, personal or privacy rights of any third party or the Company; (c) your use of the Site, the Software and the Services will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Site, the Software and the Services will not in any manner, directly or indirectly, disparage, defame, discredit or harm Company or its reputation or goodwill; (e) your acceptance of these Terms of Use and/or use of the Site, the Software and the Services hereunder does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; and (f) your acceptance of these Terms of Use and use of the Site, the Software and the Services is for a bona fide purpose and you are not using the Site, the Software or the Services to resell any Services or distribute or otherwise use the Software or Services for an improper, illegal or unethical purpose.
Legal Compliance
You agree to comply, at your sole and own expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with these Terms of Use. You will immediately report to us any and all suspected or actual violations of these Terms of Use by others that you are aware of (or should be aware of, based upon the circumstances).
Regulatory Compliance
Company may be subject to regulation by agencies of the government of United States of America and/or foreign governments, including, but not limited to, the United States Department of Commerce, which prohibit export or diversion of certain technical products to certain countries. Your present and warrant that you will comply in all respects with the applicable rules and regulations of any and all agencies of the governments of the United States of America and foreign governments that are applicable to your use of the Site, the Software and the Services; provided, that in the event or instance of any conflict or ambiguity between the applicable rules and regulations of agencies of the United States of America and those of any foreign government, the former (i.e. of the U.S.A.) shall be given priority and precedence.
Disclaimer of Legal Compliance
YOU EXPRESSLY UNDERSTAND AND ACKNOWLEDGE THAT THE SITE, THE SOFTWARE AND SERVICES MAY NOT CONFORM TO, OR MEET WITH, ANY OR ALL APPLICABLE REQUIREMENTS OF SSAE 16, PAYMENT CARD INDUSTRY (PCI) STANDARDS (AS AMENDED), THE SARBANES-OXLEY ACT OF 2002 (AS AMENDED), THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) (AS AMENDED), THE GRAMM-LEACH-BILEY ACT (AS AMENDED) AND OTHER LAWS, RULES AND REGULATIONS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SITE, THE SOFTWARE AND THE SERVICES AND THEIR COMPLIANCE WITH THE AFOREMENTIONED LAWS OR ANY OTHER LAWS, RULES OR REGULATIONS.
Proprietary Information
All Company information, materials, content, images, graphics, software, trademarks, logos, service marks provided on or through the Site, the Software or the Services (collectively the “Proprietary Information”) is and are the sole and exclusive property of the Company or are duly licensed by the Company, and may not be used, copied, reproduced, distributed, republished, uploaded, downloaded, displayed, posted or transmitted in any form or by any means without the prior express written consent of the Company. The Proprietary Information, including (without limitation) all HTML code, server-side code, XML code, and compilations of meta tag key words, specification and trade name data, newsletters and publications, press materials, product and service descriptions, testimonials and all similar data and information, is exclusively owned or duly licensed by the Company, and is and shall, to the maximum extent allowed by applicable law, be protected by copyright and trademark laws and international treaty provisions. To the extent that the Proprietary Information is also covered by copyright law (and you are hereby advised that much or all of the Proprietary Information is copyrighted), violators are given notice that any such violations may result in severe civil and criminal penalties. Violators of this paragraph will be prosecuted to the maximum extent possible. Users of the Site, the Software and the Services shall have no right to the Proprietary Information. COPYING OR REPRODUCTION OF THE PROPRIETARY INFORMATION, INCLUDING, BUT NOT LIMITED TO, WEATHER NOTFICATIONS SOFTWARE OR CONTENT, TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. Proprietary Information also includes, without limitation, information, materials, content, images, graphics, software, trademarks, logos, service marks licensed or made available to Company by third parties.
Intellectual Property
Except as expressly set forth herein, nothing on the Site or through your use of the Software or Services is intended to grant any rights (including, without limitation, under or with respect to any patent, mask work right, copyright, trademark, title, interest in products or trade secret of Company) to you. All such rights shall remain the sole and exclusive property of the Company and you shall gain no interest, right or title therein. Further, nothing contained herein, on the Site or through your use of the Software or Services should be construed as granting (whether express, by implication, estoppel or otherwise) any license or right to use any intellectual property, trademarks, copyrights or other proprietary information (or the Proprietary Information) displayed on or through the Site, the Software or the Services. The absence of a product or service name or logo anywhere in the text of the Site, the Software or the Services does not constitute a waiver of any trademark or other intellectual property rights concerning that name or logo. UNDER NO CIRCUMSTANCES WHATSOEVER MAY ANY USER REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE ATTEMPT TO DECIPHER THE SITE, THE SOFTWARE OR THE SERVICES OR ANY OTHER ASPECT OF THE COMPANY’S TECHNOLOGY, INTELLECTUAL PROPERTY, PRODUCTS, SERVICES OR PROPRIETARY INFORMATION.
Third Party Code; Notice and Attribution.
The Storm Alerts Software include third party software subject to open source license terms, which may include, without limitation, the following applications: Encryption Engine and Compression Algorithm. All rights are reserved by the licensors of such code and ownership is attributed as follows: Encryption Engine: Copyright © 2002, Dr Brian Gladman
[email protected], Worcester, UK. Compression Algorithm: Copyright © 1995-2002 Jean-loup Gailly and Mark Adler.
Supervision
The Company does not assume responsibility for verifying the content, materials, documents and information passed through or accessed via or in connection with the Site, the Software or the Services. The Company is not responsible for any damages, losses, expenses or other injuries incurred by any User as a result of, relating to, or in connection with, any content, materials, documents and information transmitted, distributed or uploaded through or in connection with the Site, the Software or the Services.
Access
We may alter, suspend or discontinue (in whole or in part) the Site and the Services or your access to use Site and the Services at any time for any reason (or no reason) without any notice or liability whatsoever to you or to any third party (provided, that if you are a User of the Services and we suspend or discontinue the Services or your use of the Services, without cause or reason or notice).
The Site, the Software and the Services may become unavailable due to routine maintenance or malfunction of computer equipment or for other reasons, and in any such instance, may result in damages to your systems or operations; we shall no liability whatsoever to you under any such circumstance. You shall be solely and wholly responsible for ensuring that any information, documents, materials or content obtained through or in connection with the Site, the Software or the Services (i) does not contain any virus or other computer software code or subroutine designed to disable, erase, impair or otherwise damage your systems, software or data, and (ii) that are lawfully and properly used, uploaded, shared or accessed by you, are backed up or stored on your own systems or servers. The Company shall have no obligation or duty whatsoever to backup any portion of the Site or any information, content, materials or documents on the Site. You expressly agree and acknowledge that you are not relying on us to perform any backup or storing of your content, information, materials or documents.
Third Party Content, Advertising or Services
Please note that the free version of the Software is supported by advertising. Accordingly, the Site and the free version of the Software may provide third party content, advertising and services, and links thereto (e.g., links to third party websites), that are owned or operated by third parties or generated by other users (collectively, “Third Party Content and Services”). As a user of the Site and the free version of the Software and Services, you may be presented with Third Party Content and Services within the Site, through your use of the Software and Services, and within web pages rendered by your browser when the Software or Services are enabled. Such Third Party Content and Services are not endorsed or controlled by the Company, and the Company assumes no responsibility for the content, privacy policies, or practices of any Third Party Content and Services. Additionally, your dealings with or participation in promotions of advertisers derived from such Third Party Content and Services, including payment and delivery of goods, and any other terms are solely between you and such providers of Third Party Content and Services. You agree that the Company shall not be responsible for any loss or damage of any sort relating to your dealings with such providers of Third Party Content and Services. By upgrading to the Company’s paid or premium version of the Software and Services, the program, mechanism or add-on to the Software that provides the Third Party Content and Services will be automatically uninstalled.
Important Information Regarding Weather Warnings Software Functionality
Weather Warnings Software incorporates search functionality software (the “Software”), described as follows: The Software recognizes keywords from your Internet browser to display relevant contextual advertisements. These advertisements may be displayed on your computer screen at any time while you are searching and shopping online (and not necessarily while you are using any product or service related to or downloaded with the Software). The Software neither stores any personally identifiable information nor records your browsing behavior. Please refer to Section 11 (below) for further information about our privacy policies.
Display of Advertising.
The Software starts automatically when you start your computer, runs in the background on your computer, and may periodically direct you to our sponsors’ websites and/or show you other forms of advertisements (including the Slider or pop up format). By installing Storm Alerts and/or using the Software you grant Weather Warnings permission to periodically show you advertisements. The frequency of these advertisements will be limited. Depending on Internet activity, active users may see about five (5) advertisements per day; some may see more, some may see fewer. On occasion, you may search for a website and receive an error from your browser software indicating that the site cannot be found. When this occurs, the Software includes a function that may redirect your web browser to our sponsor’s websites based on the content of the website address, or URL, which you entered. You hereby consent to these actions. Please note that you may receive ads for Adult-oriented websites if you utilize keywords connected to, search for or view Adult websites. An Adult website is one that contains or references (whether via audio, video, audiovisual, images, sounds or text) any of the following: profanity, violence, blood and gore, weapons, use of alcohol, drugs, tobacco, online gambling, pornography, erotica, erotic images, nudity, sex, sexually explicit images, and sexual references. Weather Warnings does not permit ads that are themselves pornographic, nor does it permit advertisements for online “pay-for-play” gambling, either directly or indirectly, in the United States or other jurisdictions where such advertisements are disallowed. More generally, Weather Warnings does not permit ads promoting illegal products or illegal practices. If you believe you have received an ad that violates these prohibitions, please contact us at the web or street address listed in the last section of this Agreement. We request that you enclose a screenshot of the advertisement (including its ad label) in your communication to us.
Identification of Advertisements.
The advertisements that the Software presents are not endorsed by or affiliated with the websites that trigger their appearance. Advertisements that the Software presents are branded with a Weather Warnings brand name in, for example, the browser window. This branding will let you know that the advertisements are brought to you by Storm Alerts and not by the website you may be viewing when the advertisements are displayed.
Links to Us
Unless another party has entered into a written agreement with the Company, a party may only provide a hypertext link to the Site on another web site, if such hyperlink complies with ALL of the following conditions: 1) the link must be a text-only link clearly marked as www.storm-alerts.net ; 2) the link must “point” to the URL “http://www.storm-alerts.net ” and not to any other pages within the site; 3) the link, when activated by a user of the linking site, must display the Site full-screen and not with a “frame” on the linking web site; and 4) the appearance, position and other aspects of the link must not be such as to directly or indirectly damage or dilute the goodwill associated with the name and trademarks of the Company and the Site, and must not create the false or misleading appearance that the Company or the Site is associated with, or endorses or sponsors, the linking web site. The Company may selectively revoke its consent to any link at any time (for any reason or no reason) in the Company’s sole and absolute discretion.
Support, Software Updates and Uninstall
The Company may elect to provide you with customer support for the Site, the Software and/or the Services (collectively, “Support”), in its discretion, and may terminate such Support at any time without notice to you. The Company reserves the right, at any time, to add additional services and products, including services and products of its third party affiliates and marketing partners, and/or add additional, features or functions to, or release new versions of, the Software (any such new services, products, or features, functions or versions of the Software, “Upgrades”). The Company reserves to right to automatically install, without your additional consent, any Upgrades at any time when the Software communicates with the Company’s servers. Finally, although we may make Upgrades available to you, you understand and acknowledge that we have no obligation to do so. The Company may change, suspend, or discontinue any aspect of the Site, Software and/or Services at any time. The Company may also impose limits on certain features within the free version of our Software and Services or restrict your access to parts or all of the features without notice or liability to you. The Company reserves the right to market, promote, advertise or solicit other offerings through your use of the free or paid version of our Software and Services. Once installed, the Software can be uninstalled by accessing Add/Remove Software (or Uninstall a Program) through your Control Panel.
Disclaimer of Warranties
THE SITE, THE SOFTWARE AND THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. TO THE FULLEST AND MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT: (1) THE INFORMATION, MATERIALS OR CONTENT ON THE SITE OR RELATED TO THE SOFTWARE OR THE SERVICES IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THE SITE OR THROUGH THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (3) ANY DEFECTS WILL BE CORRECTED, OR THAT THE SITE, THE SOFTWARE OR THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SITE, THE SOFTWARE AND THE SERVICES IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT, AND UNDER NO CIRCUMSTANCES, WHATSOEVER (AND REGARDLESS OF THE PURPORTED THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) WILL WEATHER ALERTS BE LIABLE (EVEN IF WEATHER ALERTS KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR: (1) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE SITE, THE SOFTWARE, ANY SERVICES OR THE RELATIONSHIP BETWEEN YOU AND WEATHER WARNINGS; OR (2) AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THESE TERMS OF USE, THE SITE, THE SOFTWARE, ANY SERVICES OR THE RELATIONSHIP BETWEEN YOU AND WEATHER WARNINGS, WHICH EXCEEDS THE AMOUNT ACTUALLY PAID BY YOU TO WEATHER WARNINGS TO ACCESS AND USE THE SOFTWARE AND THE SERVICES (IF YOU ARE A USER), OR, IF YOU HAVE NOT PAID TO USE THE SITE OR THE SERVICES, THE TOTAL AMOUNT OF $9.99 (TEN UNITED STATES DOLLARS). Each of you and us expressly acknowledge and agree that the limitations of liability set forth in this paragraph are an essential element to the agreement to enter into a relationship between you and WEATHER WARNINGS, and in the absence of such limitations, the economic terms of the relationship between you and WEATHER WARNINGS would have been substantially different than provided herein and/or the parties would not have entered into such a relationship.
Indemnification
You will, at your own expense, defend, indemnify and hold harmless the Company, its affiliates and agents, and their respective officers, directors, shareholders, agents, representatives, contractors, employees and customers (each, an “Indemnitee”, and collectively, “Indemnitees”) from and against any and all loss, cost, expense, damage, claim, demand, or liability, including (without limitation) reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by, or demanded of, an Indemnitee, that, directly or indirectly, arises out of, results from or occurs in connection with: (a) your negligence, bad faith or willful misconduct; (b) your breach of any of the provisions of these Terms of Use; (c) your violation of any applicable law, rule or regulation; (d) (i) infringement by you of any intellectual property, proprietary or other rights of any third party, including (without limitation) any patent, copyright or trademark, (ii) unlawful disclosure, use, or misappropriation of a trade secret by you, or (iii) violation of any other third-party intellectual property right, or other property or personal right of any person or entity; or (c) your use of the Site, the Software or any Services in any manner whatsoever. We reserve the right, at our own cost and in our sole and absolute discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses, and reimburse our reasonable costs and expenses (including, without limitation, reasonable attorney and professional fees) in connection with, relating to or arising from our defense in such matter.
Changes or Specialized Modifications
The Company may, in its sole and absolute discretion, modify or change any or every aspect of these Terms of Use at any time (for any reason or no reason), effective immediately upon posting such modifications or changes (or a revised version of these Terms of Use incorporating such modifications or changes therein) on or through the Site. Please periodically consult the end of these Terms of Use to determine when these Terms of Use were last revised. You agree to periodically review these Terms of Use to ensure that you are in compliance with any ongoing changes or modifications that are made to these Terms of Use. Your continued use of the Site, Software and Services after any such modifications or changes are posted will constitute your complete and unequivocal acceptance of such any modifications or changes to these Terms of Use. The Company reserves the right, but has no obligation whatsoever, to modify or change these Terms of Use as it applies to any specific User, provided that any and all such special modifications must be in writing and signed by and between the Company and the applicable User. Any specialized modifications so made shall apply exclusively and only to the User that is a party to such written agreement.
General
If any provision of these Terms of Use is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (i) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (ii) the remaining provisions of these Terms of Use will be unaffected thereby and will continue to remain in full force and effect at all times.
These Terms of Use shall be governed by and construed in accordance with the laws of the State of Minnesota without regard to the conflicts of law provisions thereof. You expressly agree that any controversy, dispute or claim (“Litigation”) arising out of, relating to, or in connection with, these Terms of Use, the Site, the Software or the Services shall be settled by confidential binding arbitration in Hennepin County Minnesota, in accordance with the applicable rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms of Use or your use of the Site, the Software or the Services must be filed within 6 months after such claim or cause of action arose or was reasonable discovered, whichever is later, or be forever barred. In the event of any Litigation, both parties expressly and irremovably consent to the exclusive venue and personal jurisdiction in Hennepin County Minnesota. In the event of any Litigation arising from, related to or in connection with these Terms of Use, the Site, the Software or the Services, the prevailing party thereof shall be entitled to recover its reasonable expenses, including (without limitation) attorneys’ fees and the costs of litigation and arbitration. The agreement to arbitrate in this paragraph shall not prevent Company from seeking redress in any court of competent jurisdiction to protect its Proprietary Information or intellectual property, nor shall it prevent either party from enforcing this agreement to arbitrate or enforcing any judgment in any court of competent jurisdiction. You expressly agree that any Litigation arising out of, relating to, or in connection with, these Terms of Use, the Site, the Software or the Services, shall be resolved individually, without resort to any form of class action.
Company will not be liable for any failure to perform acts due to causes beyond its control (including, without limitation, electrical outage, Internet Service Provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war or Acts of God). If any such circumstances occur, Company shall provide reasonable notice to you of the same and the time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.
Neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred (in whole or in part) by you without the prior express written consent of Company. Any attempted assignment by you in violation of this paragraph shall be null and void. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns. Company may freely assign or transfer (in whole or in part) this Agreement without your consent or notice thereof to you. Company may also freely subcontract or otherwise delegate the Services or any portion thereof or any of its obligations under these Terms of Use to a third party or subcontractor without your consent or notice thereof to you.
The rights and remedies of Company under these Terms of Use are cumulative and may be exercised singularly or concurrently in each and every instance. You acknowledge and agree that any actual or threatened breach of any of the provisions contained in the paragraphs titled Intellectual Property and/or Proprietary Information herein may result in immediate, irreparable and continuing damage to Company for which there is no adequate remedy at law, and Company may apply to any court of competent jurisdiction for immediate equitable relief (including, without limitation, specific performance or injunctive relief) without the need for posting of any bond.
Failure by Company to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision, unless (and only to the extent) that such waiver is in writing and signed by a duly authorized representative of Company.
These Terms of Use contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof. Except as provided in the paragraph titled “Changes or Specialized Modifications”, any modification, addendum, or amendment to these Terms of Use will not be effective unless the same is in writing and signed by duly authorized representatives of both parties hereof.
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