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Services License Agreement |
Services License Agreement Terms and Conditions in Legal Terms
1.0 - General
Visualware, Inc. ("Visualware") reserves the right to prohibit any conduct or to remove any materials or content in violation of the Rules or which Visualware believes in its sole discretion to be illegal or potentially harmful to others or may expose Visualware to harm or liability. Visualware may suspend or terminate your use of Visualware Services if it determines that you have failed to comply with any of the Rules. Visualware reserves the right to take or terminate the use of any user name or email address at any time. This agreement will be governed by and construed in accordance with the laws of the State of California. Each party consents to the exclusive venue and jurisdiction of the appropriate courts in California for any disputes under this agreement.
2.0 - Visualware Obligations
2.0(a) Visualware Services. Subject to the Rules, and such other regulations that Visualware may adopt from time to time, Visualware will provide Subscriber with No-cost or a Fee-based remote Web site measurement and monitoring service. Visualware retains the right to suspend or terminate use of the Visualware Service at any time for any reason, without notice, and nothing herein shall be construed to limit that right.
2.0(b) Collection and Use of Personal Information. Visualware will collect, store, compile and utilize information about you, your computer and your use of the Visualware Services in accordance with the terms of the Privacy Policy. Visualware does not rent or sell your Personally Identifiable Information to anyone without your express permission. Visualware does not collect or use any information about you except for the information that you provide or is publicly available, and this information is used solely to make the services provided more relevant to your interests. Visualware provides both free and fee-based services. By becoming a Visualware Subscriber, you agree to receive email communications including monitoring alerts, weekly reports, announcements, updates and other carefully screened special offers and promotions. This is essential to maintaining certain services to our subscribers. Subscribers may expect to receive no more than four special offers or promotions per month. If you do not wish to view and receive such communications, you may cancel your account by contacting services@visualware.com or by following the instructions at the end of the e-mail you receive from Visualware. If you do this, your account will automatically be terminated and you will receive no further service or contact from Visualware. However, Visualware will not disclose your name, address, telephone number, credit card number(s), e-mail addresses or other personal identifying information, unless you give Visualware consent to do so or except as may be required by law. Please refer to the Privacy Policy for the Visualware privacy policies and information practices.
3.0 - Your Obligations
3.0(a) Completion of Visualware activation forms. In exchange for Visualware providing the Visualware Services without charge, you agree to provide Visualware with accurate and complete information it may request, from time to time, through questionnaires, surveys and activation forms.
3.0(b) Minors. If you are less than 18 years old but older than 12 years old, you should obtain your parent's permission to use the Visualware Services. If you are less than 13 years old, you are not allowed to use the Visualware Service without providing Visualware with your parent's consent in the form required by Visualware. If you are a parent permitting a minor to use Visualware Services, you agree to: Exercise supervision over the minor's use of Visualware Services and access to the Internet. Assume all risks associated with the minor's viewing of content received through use of Visualware Services and the minor's transmission of materials, content, or information to another person via the Internet. Assume any and all liabilities resulting from the minor's use of Visualware Services. Ensure to the fullest extent possible the accuracy and truthfulness of all information submitted by the minor in response to Visualware questionnaires, surveys and Activation Forms. You must register for Visualware Services using your own name. During activation, you may be asked to provide the name, email address or number you wish to use as your login identification. If the login identification you request is not available you will be asked to supply another login identification. Visualware reserves the right to verify the accuracy of the information you submit in connection with your activation for Visualware Services (including, without limitation, performing cross tabulations with external databases) and you hereby consent to Visualware's verification of such information.
3.0(c) Other Charges. You are responsible for any and all charges related to your use of Visualware services, including, but not limited to, all calls you make to Visualware's Customer Service lines.
3.0(d) Use of your Visualware Account. You are responsible for all use of your Visualware Services and for the security of your login identification, your password and any security lock code that you use to protect access to your data, Visualware personal profile, your file name(s) and files, network and user access, and any information you disseminate through use of Visualware Services or through other Internet services.
3.0(e) No Resale of Visualware Services and the Visualware Site. The Visualware Services are for use of registered Subscribers only and may not be copied, resold, leased, transferred, exchanged or bartered. You must not use this service in any way that causes an unreasonable load on the system or deviates from its intended use. You must not set up any automated programs to interact or act upon our systems without prior written consent from Visualware. You must not cause an unreasonable or unwanted load on any third party systems. Upon acceptance of these terms, you have a nonexclusive license to use the Service. You agree not to modify, change, disassemble, decompile or otherwise reverse engineer any software or service provided by Visualware. You must not cause or allow robots or other automated processes to act upon or interact with Visualware's Web site or systems or user interfaces without prior written consent from Visualware.
3.0(f) Use of Data. Subscribers and all visitors agree that all data generated by the services are for Subscriber's internal use and reference only. If Subscribers use the Visualware services to monitor Web sites or devices, which Subscriber does not directly own, Subscriber agrees not to publish or otherwise disclose data acquired about such Web site or device.
3.0(g) Duplicate Accounts. Subscribers may not create or activate duplicate accounts without prior written consent.
3.0(h) Links to Third Party Sites. The Visualware Site contains links to other sites on the Internet that are owned and operated by third parties. In some instances these sites are co-branded and the third parties are entitled to use Visualware's name and logo on these sites. Visualware does not always control the information, products, or services on these third party sites. The inclusion of any link does not imply endorsement by Visualware of the site or any association with their operators. Because Visualware has no control over such sites and resources, you agree that Visualware is not responsible or liable for the availability or the operation of such external sites, for any material located on or available from any such sites, or for the protection of your privacy data by third parties. Any dealings with or participation in promotions of advertisers on our Service, including the payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings or promotions, are solely between you and the advertiser or other third party. You further agree that Visualware shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such site or any such dealings or promotions.
4.0 - Your payment obligations
4.0(a) Fees for Service. You understand and agree that fees for services will be billed to the credit card you provide on a monthly or annual basis as agreed. If your credit card is not valid or if payment is not made for any reason the subscriber will be considered in default under the Agreement. If any payment due to the Company under this Agreement is not paid when due, Subscriber agrees to pay interest on the past due amount on a daily basis from the due date until the date paid at a rate equal to the lesser of 1.5% per month or the maximum rate allowed by law.
4.0(b) Refunds, Credits and Cancellations. The Demo and Evaluation Services are available at no cost to the Subscriber. The Fee-based Service is based on a monthly fee paid via the Subscriber's credit card. Visualware does not issue credits or refunds in the event of a change in services requested or cancellations. The cost to track and issue credits or refunds would be relatively high and the benefit would be relatively low considering the comparatively low monthly fees.
4.0(c) Automatic renewal. This Agreement will automatically renew at the monthly/annual service price unless Subscriber cancels the account by contacting services@visualware.com or sends written notice that he or she does not want it to renew at least fifteen (15) days before the end of the month. The Company may cancel the automatic renewal term by sending Subscriber written notice that the Company does not want the Agreement to renew, at least fifteen (15) days before the end of the month.
5.0 - INDEMNIFICATION OF VISUALWARE
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD VISUALWARE AND ITS SPONSORS, ADVERTISERS, PARTNERS OR OTHER CO-BRANDERS AND AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND COURT COSTS) (COLLECTIVELY, "CLAIMS") ARISING OUT OF OR RELATING TO YOUR BREACH OF ANY OF THESE RULES OR USE (BY YOU OR ANY THIRD PARTY) OF VISUALWARE SERVICES THROUGH THE VISUALWARE ACCOUNT ASSIGNED TO YOU, EXCEPT TO THE EXTENT SUCH CLAIMS DIRECTLY RESULT FROM VISUALWARE'S OWN NEGLIGENCE. THE FOREGOING INDEMNIFICATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF VISUALWARE SERVICES PROVIDED TO YOU.
6.0 - WARRANTY DISCLAIMERS
YOU ACKNOWLEDGE THAT VISUALWARE SERVICES ARE PROVIDED "AS IS, AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE VISUALWARE SERVICES OR WITH RESPECT TO THE QUALITY OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF VISUALWARE SERVICES OR THAT VISUALWARE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. VISUALWARE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OF COMPUTER PROGRAMS AND INFORMATIONAL CONTENT, PRODUCTS OR SOFTWARE SOLD OR OTHERWISE MADE AVAILABLE ON THIS SITE. VISUALWARE IS PROVIDING A SERVICE REMOTELY VIA THE INTERNET AND MULTIPLE PUBLIC AND PRIVATE FACILITIES, SOME OF WHICH ARE NOT WITHIN OUR CONTROL. THE COMPANY DOES NOT GUARANTEE THE QUALITY OR CONDITION OF THE SERVICE. VISUALWARE DOES NOT GUARANTEE YOUR SERVICES WILL BE ACTIVE AND AVAILABLE 100% OF THE TIME AND WILL NOT BE HELD LIABLE FOR ANY LOSSES IN THE EVENT THAT THERE IS A SERVICE FAILURE.
7.0 - LIMITATION OF VISUALWARE'S LIABILITY
IN NO EVENT SHALL VISUALWARE BE LIABLE UNDER ANY SECTION OF THESE TERMS AND CONDITIONS OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) WHETHER OR NOT VISUALWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. VISUALWARE SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY AND IN NO EVENT SHALL VISUALWARE'S LIABILITY TO YOU EXCEED ONE DOLLAR ($1.00) OR ANY AMOUNTS ACTUALLY PAID IN CASH BY YOU TO VISUALWARE, WHICHEVER IS LESS. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE RULES OR OUT OF THE VISUALWARE SERVICES MAY BE BROUGHT BY YOU OR VISUALWARE MORE THAN ONE (1) YEAR AFTER THE EVENT HAS OCCURRED, WHICH GAVE RISE TO THE CAUSE OF ACTION. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, VISUALWARE'S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8.0 - Default and Remedies
The subscriber will be in default under this Agreement if there is any one or more of the following actions: Failure to pay any amount when due. Subscriber fails to comply with any provision of this Agreement. Any representation made by subscriber in this Agreement is or becomes untrue. If subscriber is in default in any way, the Company may immediately take any one or more of the following actions. Declare all unpaid amounts due and payable. Terminate this Agreement with respect to all or any part of the Services. Take any other lawful action the Company may deem appropriate to obtain damages for subscriber's breach.
9.0 - Miscellaneous
9.0(a) Liability Limitation. Visualware shall not be liable for nonperformance or delay in performance caused by any reason, whether within or outside of its control.
9.0(b) Legal Actions. These Rules will be governed by and construed in accordance with the laws of the State of California. The exclusive personal jurisdiction of and venue for all disputes arising out of these Rules shall be the state and federal courts located in the State of California, USA and you consent to such exclusive jurisdiction and waive all objections to such jurisdiction and venue.
9.0(c) Severability. If any provision of these Rules is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to comply with applicable laws, and the remainder shall remain in full force and effect.
9.0(d) No Waiver. Any failure of Visualware to enforce any provision of these Rules shall not constitute a waiver of any rights under such provision or any other provision of these Rules.
9.0(e) Compliance with laws. Subscriber will comply with all state and federal laws, rules, regulation and tariffs regarding any specific applications and use of the Services.
9.0(f) Sales/use Taxes. You will pay all sales or use taxes. Subscriber will also pay all other local, state or federal taxes arising out of his use of Services (excluding any income taxes), and you will provide Seller with written proof of payment upon request. If you fail to pay any taxes, charges or fees, the Company may at its option, pay the applicable taxes, charges and fees, and subscriber will reimburse the Company for those payments.
9.0(g) Force Majeure. Except for Subscriber's payment obligations, neither party will be liable for any failure or delay in performing any obligation under this agreement that is due to causes beyond its reasonable control, such as natural catastrophes, government acts or omissions, laws or regulations, labor strikes, communications systems breakdowns, hardware or software failures, transportation stoppages or slowdowns, or the inability to procure supplies or materials.
9.0(h) Entire Agreement and Modifications. The terms of this Agreement constitute the entire agreement between Visualware and the Subscriber regarding its subject matter and its terms supercede any prior or simultaneous agreement or terms, whether oral or written. Except as provided herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein.
9.0(i) No Assignment. Subscriber may not assign, resell, or license this agreement or the Services provided hereunder, without the prior written consent of Visualware. You acknowledge and agree that you have read the Rules and understand and accept their terms.
10.0 - How to Contact Us
Specific questions about the Terms and Conditions should be directed to services@visualware.com or by contacting us in writing or by phone.
11.0 - Copyright Notice
Except where otherwise noted, all site content is copyright (c)1997-2004 Visualware, Inc., ALL RIGHTS RESERVED. For a request to reuse any content, please contact Visualware at services@visualware.com This site contains links to information maintained by other entities, including our partners, advertisers and other third parties. Visualware does not provide any warranty about the accuracy or source of such information. All trademarks used or referred to on this site are the property of their respective owners.