Terms of Service Agreement
This Terms of Service Agreement (“this Agreement”) sets forth the terms governing your use of ALTADYN® Corp.’s online websites, online services (“license”) including but not limited to : altadyn.com, 3D-VirtualEvents.com, 3D-VirtualEmbassy.com, 3DXplorer.com, ToonMX.com, as well as the online TECHNOLOGIES, whether they are used from the above mentioned websites or from other websites linked to ALTADYN’s servers, or resulting from an ALTADYN delivery, including the patent pending ALTADYN® Corp technologies used in 3D-VirtualEvents.com, 3D-VirtualEmbassy.com and the 3DXplorer® technology belonging to ALTADYN SA. Each of the above mentioned technologies are composed of the online application software (“online service”) and the downloadable player application software (“player”) ) and related web site content (3D spaces, models, avatars, graphics, text, video, audio,…), collectively called “ALTADYN®” content and ALTADYN technology, available through or in connection with the above mentioned web sites , generally referred to as “The Web Site”. This Agreement is a legal contract between ALTADYN Corp. a Delaware Corporation with offices in 2192 Dupont #108, Irvine, CA 92612 USA (referred to in this Agreement as “Provider”) and you (referred to in this Agreement as “you” or “subscriber” or “member”) and your principals as described below. The Web Site may be used only by persons who accept the terms of this Agreement. If you do not intend to accept the terms of this Agreement, you should refrain from using The Web Site in any manner.
Subscribing to or using The Web Site constitutes acceptance of the terms of this Agreement by you and by parties on whose behalf or for whose benefit you are acting (“Principals”). You represent and warrant that you have read this Agreement, that you are 18 years of age or older, and that you are authorized to enter into this Agreement and bind your Principals to the terms of this Agreement. Unless otherwise specified, references to “you” or “subscriber” or “member” in this Agreement shall be construed to also refer to your Principals. If you do not wish to accept this Agreement, you should not subscribe to or use The Web Site. By accepting this Agreement, you agree to use The Web Site in accordance with, and otherwise comply with, the terms of this Agreement and acknowledge that this Agreement provides for various limitations as set forth below.
1. Use of The Web Site, the ALTADYN® Technology and Services
a) License for “online service”. Subscribing to The Web Site provides each registered subscriber (“Member”) with access to a package of certain software technology and content (“ALTADYN® Software and Service(s)”). Members may use the ALTADYN ® software, tools and other technology (“ALTADYN ® Software”) and content (“ALTADYN ® Content”) to build their 3D Internet space (“Member Site”). Provider hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by provider and its licensors. You understand and agree that Provider may, in its sole discretion, modify The Web Site as described further in Section 4 below.
b) License for “player”. Your member site requires the use of the ALTADYN player for full functional navigation. Provider hereby grants you a non-exclusive, non transferrable, worldwide right to use the player subject to the terms and conditions of this agreement, and to distribute the player to your online visitors, in the limit of the authorized number of licenses as per your selected subscription plan. You acknowledge that the distribution of the player takes place by inserting the HTML code for calling the player in your web page, or by sharing, communicating or distributing the link (URL) of your 3D space to your employees, customers, event attendees or other visitors of your space..
You agree to make best efforts in order to protect provider’s intellectual property and avoiding circumvention of the player including reverse compiling, reverse engineering, or otherwise modification or derivative works based upon the player.
c) The Web Site Standard Services and Upgrades. Subject to the terms of this Agreement, you will be able to use the ALTADYN® Technology to build and maintain your Member Space. The Web Site Standard Service allows your use of certain tools to perform certain functions. Provider reserves the right to modify The Web Site Standard Service in its sole discretion as described further in Section 4 below. Provider may offer other services, including additional tools, which are not part of The Web Site Standard Service, including “upgrade” services for which a separate fee will apply.
2. Restricted Use and Conduct
a) Illegal Conduct. You agree not to violate (or allow others to violate) any applicable laws in connection with using The Web Site. You are responsible for ascertaining the requirements of applicable laws and complying with such laws. Examples of illegal conduct include the following: (i) posting any content that is illegal in the location at which the content is posted or received; (ii) infringing or otherwise violating any copyright, trademark, trade secret, patent or other intellectual property right of any third-party; (iii) making, posting or distributing statements that are libelous or defamatory; (iv) invading the privacy of third-parties or otherwise failing to comply with applicable privacy laws; (v) promoting, soliciting or otherwise participating in illegal pyramid schemes or illegal sweepstakes, raffles, lotteries, contests or gambling activities; (vi) promoting, selling or otherwise providing illegal goods or services; (vii) promoting, selling or otherwise providing pirated computer programs or pirated music; (viii) promoting, selling or otherwise providing illegal drugs or illegal drug paraphernalia; (ix) promoting or making illegal sales of alcohol, firearms or other weapons; (x) promoting, selling or otherwise providing sexually-oriented goods or services that are obscene or otherwise illegal; (xi) promoting, selling or otherwise providing worms, Trojan horses, computer viruses or other harmful code or devices, or using or distributing programs designed to “nuke” or otherwise create attacks against a third-party web site, Internet service provider or other person; (xii) advocating, promoting or otherwise encouraging or assisting violent activities or activities that cause physical harm.
b) Industrial Espionage. You may not access the Service if you are a direct competitor of provider, except with provider’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
c) Offensive Conduct. You agree not to engage (or allow others to engage) in any offensive conduct in connection with using The Web Site. Offensive conduct includes conduct that is inconsistent with local community standards or that reflects negatively on The Web Site, Provider or its affiliates, partners, employees, officers or customers. Examples of offensive conduct include the following: (i) posting, promoting, selling or otherwise providing lewd, lascivious or sexually explicit materials, goods or services; (ii) posting, promoting, selling or otherwise providing materials, goods or services that contain blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity; (iii) posting harassive materials or otherwise engaging in harassive conduct; (iv) posting material or otherwise engaging in conduct that ridicules, disparages or otherwise discredits The Web Site, ALTADYN®, Provider or its affiliates.
d) Dangerous Activities. You agree not to engage (or allow others to engage) in any activities in connection with using The Web Site that involve a significant risk of serious injury or damage to persons, property, environment or business.
e) Circumvention. You agree not to (and agree not to allow others to) (i) attempt to derive the underlying source code, structure or sequence of the ALTADYN® Technology or any part of The Web Site by reverse engineering, reverse compiling or otherwise modify or make derivative works based upon the Service (ii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, codes, functions or graphics of the Service. (iii) attempt to ascertain or use individual passwords of Member Sites; (iv) delete or alter author attributes, copyright or other proprietary notices, or similar information associated with The Web Site; (v) fail to obtain all required permissions when using The Web Site to receive, upload, download, display, use, distribute, or execute programs or perform other works protected by intellectual property laws, including copyright, trademark, trade secret and patent laws.
f) Determination of Violation. Provider shall have the right to determine in its sole discretion whether the requirements of this Section or other terms of this Agreement are being violated and to take such actions as Provider deems necessary or appropriate to remedy such violation including restriction or termination of access to The Web Site pursuant to Section 7 of this Agreement. However, Provider assumes no obligation to make any such determination or take any particular actions.
g) Unauthorized access. You shall not attempt to gain unauthorized access to the Service or its related systems or networks. The number of player calls you can make per account is limited per your membership/subscription plan; you shall not call the player more than the authorized number in your plan or attempt to find ways to call the player more than the authorized number in your plan. The maximum number of avatars and the maximum number of licenses for spaces as well as other parameters of your account are limited per your membership/subscription plan. You are obliged to respect those limits and shall not attempt to find ways to go over those limits.
3. Fees and Payment Terms
a) Fees and Payment. Provider charges for fees and collects them in advance for use of the Service. The Web Site Standard Service fees and other applicable fees and payment terms are set forth in the Membership/Subscription plans posted on the Web Site. Provider reserves the right in its sole discretion and as it deems appropriate to change its fees and add, remove or otherwise modify the services it offers in accordance with Section 4 of this Agreement. You agree to prepay such fees as provided in such Membership/Subscription plans and pursuant to this Agreement. You acknowledge that all amounts paid are nonrefundable. Provider uses 3rd party banking services such as Paypal® or Google checkout or other third party services to receive your payment. In the future, provider may require that you provide your credit card information (or other payment instrument accepted by Provider) for payment, where charges that you incur will be charged to the credit card number (or other acceptable payment instrument) that you provide. If Provider does not receive payment or pre-payment, and that for any reason, you agree to pay Provider all amounts due on demand plus interest and expenses as provided in Section 3(d) below. You hereby authorize Provider to take all necessary actions to obtain payment. You understand and agree that if Provider does not receive timely payment of all amounts due, your use of The Web Site may be restricted or terminated as further described in Section 7 of this Agreement. Late payment is also subject to late charges as may be set forth in the Membership plans. Any Member that without justification disputes charges for hosting or related services directly with a credit card issuer or other third-party resulting in a “chargeback” or “stop payment” or other form of payment reversal will be subject to immediate termination pursuant to Section 7 of this Agreement. If a Member wishes to continue service subsequent to undergoing a restriction in service or termination resulting from a payment reversal, reinstatement will be subject to corresponding fees.
b) Insufficiency in a membership plan. Waiver of Liability. You agree to purchase a membership plan with sufficient player licenses, so that all your visitors will be able to use the player on your member site. You acknowledge that in case of insufficiency, your visitors’ access to the player will be denied by provider and an explicit message will inform your visitors about the reason of the denial of access. In addition to the limitations of liability set forth in Sections 4c, 11 and 12, you agree that Provider shall not be liable for any damage, whether foreseeable, unforeseeable, direct, indirect, consequential or otherwise, that may result from denial of access to the player or to a specific section of your Member Site as described above.
c) Unauthorized Use. You agree to notify Provider immediately if you suspect unauthorized use of The Web Site, your password, or if you suspect any other unauthorized activity. Similarly, You agree to notify Provider immediately if you suspect unauthorized use of ALTADYN® player, available through your account and targeted to use by your visitors.
d) Taxes. You agree to be responsible for and pay any taxes, including personal property taxes or sales taxes, use taxes, value added taxes or similar taxes, applicable to your purchases from Provider or otherwise resulting from your use of The Web Site.
e) Collection Costs. You agree to pay to Provider on demand all attorney and collection fees, court costs and other expenses arising from any effort of Provider to collect any amounts due from you. You further agree that all such amounts shall bear interest at a rate of 1.5% per month or partial month overdue, or the highest interest rate permitted by applicable law if such rate is lower than 1.5% per month.
f) Billing Questions. Any questions or disputes regarding billing should be directed to ALTADYN® Support by email at the following address: contact2(at)altadyn.com.
4. Modification of Web Site, and ALTADYN® Terms; Availability
a) Modification of Web Site : Provider may at any time and from time to time modify or discontinue any or all parts of this Web Site including ALTADYN® Technology and Content and any feature thereof. Except for the addition of new tools and other services, Provider will endeavor to give notice before any modification of The Web Site that materially affects your Member Site. Provider may, in its sole discretion, provide notice by posting the modification on the Web Site, The blog site , by sending you an email, by putting a popup notice on your screen when you access The Web Site, by sending you a letter, or otherwise. If you are dissatisfied with any change, you have the right to terminate your subscription pursuant to Section 7 which shall be your exclusive remedy. Your use of The Web Site, after the effective date of a modification, constitutes your acceptance of the modification.
b) Modification of Terms. Provider may at any time and from time to time modify the terms of this Agreement including the terms relating to applicable fees. Provider will give notice of such modifications by posting changes to this Agreement on this Web Site. Provider will announce changes to its fees and charges by posting them on the web site. Provider may, in its sole discretion, supplement such notice by sending you an email, by putting a popup notice on your screen when you access The Web Site, by sending you a letter, or otherwise. If you are dissatisfied with any change, you have the right to terminate your subscription pursuant to Section 7 which shall be your exclusive remedy. You agree to review this Agreement from time to time and comply with any changes. Your use of The Web Site after the effective date of a modification to this Agreement, including a change in the applicable fees, constitutes your continued acceptance of the terms of this Agreement as modified. This Agreement may also be amended in an express written amendment signed by the parties to which the amendment applies. No provision of this Agreement may be otherwise modified except as provided in this Section.
c) Limitation of Availability. The availability of this Web Site is subject to periodic downtime for maintenance and is further subject to interruption due to failure of telecommunication links and Internet infrastructure and other causes beyond Provider’s control. You acknowledge and agree that Provider shall not be responsible for any interruptions of the availability of this Web Site . If you are dissatisfied with the availability of The Web Site, you have the right to terminate your subscription pursuant to Section 7 which shall be your exclusive remedy.
5. Privacy and Security; Third-Party Vendors
For French users: In compliance with the French Law 78-17 of January 6th , 1978, known as “Informatique et Libertés”, modified in August 2004, you have the right to access, modify, and delete your personal data at any time. To exercise this right you may write to contact2 (at) altadyn.com. Provider’s operations in regards to personal data and the above mentioned law, have been declared to the CNIL (French commission for information and civil liberties), under declaration number: 1258989 during October 2007.
(b) Security. The Web Site uses reasonable means to protect your data. Nevertheless, Provider cannot guarantee the security of any information provided by or on behalf of you, and Provider shall not be responsible for a compromise of your information as further described in Section 11. You are responsible for maintaining the security of any passwords or other access keys provided to you.
(c) Provider uses third party banking services, such as Paypal or Google checkout or other third party services, when accepting your credit card information for payment. Provider makes the information about the identity of the used banking service providers in a visible manner, at the time of payment, so that you can check if you agree to use their services. You acknowledge and agree that you enter in a relationship with the third party banking service for the sake of the transmission of personal and financial information and that the provider is not responsible for any matter in regards with the security of your credit card data or such personal and financial information as provider has no access to the credit card information or such personal and financial information.
6. Changes to Member Site
(a) Requested Member Site Changes. You authorize Provider to make changes to your Member Site to address issues that you bring to the attention of Provider through Customer Support, email or otherwise, as determined by Provider to be appropriate in its discretion.
(b) Member Site Changes by Provider. Provider reserves the right (but assumes no obligation) to make changes to your Member Site or to require you to make changes to your Member Site as determined by Provider to be necessary to prevent a breach of this Agreement or avoid a violation of other applicable restrictions. For example, Provider may have to make changes to your Member Site to avoid violations of third-party rights that Provider receives notice of pursuant to the third-party complaint and notice policy described in Section 9 of this Agreement. Provider shall endeavor to first request that you make the changes or to give you notice of changes made by Provider but you acknowledge that Provider may not first request that you make the changes and may not give advance notice of changes made by Provider.
(c) Notice of Independent Operation. You agree to post the following statement, or a similar statement with exactly the same meaning, on your Member Site: “This web site is independently owned and operated by [insert name of owner].” You further agree that Provider may post, or require you to post, other statements or notices on your Member Site as determined by Provider to be necessary or appropriate to clarify the relationship between Provider and Member or to otherwise protect the rights of Provider and of third-parties.
(d) Waiver of Liability; Provider’s Decisions Binding. In addition to the limitations of liability set forth in Sections 11 and 12, you agree that Provider shall not be liable for any damage, whether foreseeable, unforeseeable, direct, indirect, consequential or otherwise, that may result from changes made to your Member Site as described herein. Provider’s decisions under this Agreement with respect to the need to make changes to your Web Site and other matters shall be final and binding.
This Agreement starts on the Date you subscribe to the service and become a member. The term is indefinite unless an initial term is explicitly specified in the membership plans or in a custom quote from provider. In this case, the Initial Term will be as you elect during the online subscription process or as otherwise mutually agreed upon in an Order Form, commencing on the date you agree to pay for the Service by completing the online subscription form, or on the start date of the Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at provider’s then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) days prior to the start date of the following term.
8. Restriction and Termination of Subscription
(a) Restriction and Termination of Subscription by Provider.
(i) Restriction and Termination for Cause. Provider may at any time, with or without notice to you, restrict or terminate your use of The Web Site in whole or in part if Provider determines in its sole discretion that (i) restricting or terminating your use of The Web Site is necessary for security reasons or for proper continued operation of The Web Site or (ii) your use of The Web Site is not for legitimate purposes; or (iii) your use of The Web Site violates any laws; or (iv) your use of The Web Site violates any third-party rights; or (v) you have otherwise breached this Agreement or any other obligations to Provider or its Affiliates. In the event that your use of The Web Site is restricted and the restrictions are not satisfactory to you, your sole remedy shall be to terminate your subscription pursuant to Section 7(b) below.
(ii) Restriction and Termination for Convenience. Provider may at any time with reasonable notice to you, restrict or terminate your use of The Web Site in whole or in part for Provider’s convenience. Thirty (30) days notice shall be deemed to be reasonable notice. In the event that your use of The Web Site is restricted and the restrictions are not satisfactory to you, your sole remedy shall be to terminate your subscription pursuant to Section 7(b) below.
(iii) Restriction and Termination Due To Payment Problems. Provider may at any time, with or without notice to you, restrict or terminate your use of The Web Site in whole or in part, if you fail to make payments due to Provider hereunder. In the event that your use of The Web Site is restricted and the restrictions are not satisfactory to you, your sole remedy shall be to terminate your subscription pursuant to Section 7(b) below.
(iv) Obligations Upon Termination by Provider. If Provider terminates your subscription to The Web Site, you will remain liable for the full charges applicable to the period during which Provider terminates your subscription, including all usage-based fees through the end of such period, and will also remain responsible for any other obligations incurred by you prior to termination. Following such termination, you agree not to re-register for or otherwise access The Web Site without Provider’s prior written approval.
(b) Termination by You. You may terminate your subscription for any reason at any time. In this case no remaining credit will be returned to you.
(c) General Effect of Termination. In the event of termination of your subscription by you or Provider, all rights to use The Web Site and related rights including all rights provided to you under this Agreement (and all corresponding Provider obligations) shall terminate immediately but all other provisions of this Agreement, including the limitations on Provider liability and indemnification provisions, shall continue after termination. You shall remain responsible for all obligations incurred by you prior to termination. Upon termination, Provider reserves the right to delete any and all data files related to you or otherwise associated with your use of The Web Site including your content and related information.
You agree to indemnify and defend Provider and Provider Affiliates (as defined below in Section 12) upon demand, and hold Provider and Provider Affiliates harmless, against any and all claims, demands, liabilities, cost, and expenses, including reasonable attorney’s fees, collection fees and court costs, related to or arising from: (i) your use of The Web Site; or (ii) infringement of any copyright, trademark, trade secret, patent or other intellectual property or third-party right by you; or (iii) any failure by you to comply with applicable laws or restrictions; or (iv) any other breach of this Agreement by you or your agents or other affiliates.
10. Reporting Violations of Third-Party Rights
Provider assumes no obligation to monitor the content or activities of Member Sites or Members but Provider may decide in its discretion to investigate complaints of a violation of intellectual property or other third-party rights brought to the attention of Provider pursuant to the third‑party complaint and notice policy posted on this Web Site. Complaints must be accompanied with sufficient substantiation of the alleged violation as described in such policy. If you believe that any content or other aspects of this Web Site or sites hosted by Provider violate the rights of others, you should provide notice to Provider in accordance with such policy.
11. Proprietary Rights
(a) Technology and Content. You acknowledge and agree that Provider and its licensors own all rights, title and interest in The Web Site including the ALTADYN® Technology. You further acknowledge and agree that, except for content supplied by you, Provider and its licensors own all rights, title and interest in all 3D models, 3D objects, 2D data, text, music, sound, photographs, video, graphics and other Content on The Web Site. In addition, you acknowledge and agree that The Web Site , the ALTADYN® Content and ALTADYN® Technology and related items are protected by French, U.S. and international copyright, trademark, trade secret and/or patent laws, or other proprietary rights and laws, and that you are only permitted to use The Web Site, the ALTADYN® Content and ALTADYN® Technology as expressly authorized by Provider. You also understand and agree that the compilation, collection, selection, arrangement, assembly and coordination of ALTADYN® Content is the exclusive property of Provider and its licensors and protected by French, U.S. and international copyright laws. Except as expressly authorized by Provider in writing, and except for the implicit distribution of the ALTADYN player to your visitors, you agree not to make, use, sell, copy, reproduce, distribute, transmit, modify or create derivative works from The Web Site, the ALTADYN® Content or ALTADYN® Technology.
(b) Trademarks. Provider owns certain trademark rights, including rights in federally registered trademarks, graphics and logos used by Provider in connection with The Web Site to identify the goods and services of Provider (collectively the “The Web Site Trademarks”). You agree not to use the The Web Site Trademarks in any manner unless expressly authorized by Provider in writing. All other trademarks (including third-party product names) used in connection with The Web Site are the property of their respective owners and you agree not to use such trademarks without the express authorization of such parties.
12. EXCLUSIVE MEMBER REMEDY; LIMITED WARRANTY; WARRANTY DISCLAIMERS
IN THE EVENT OF ANY BREACH OF THIS AGREEMENT BY PROVIDER, OR IF YOU ARE DISSATISFIED IN ANY WAY WITH PROVIDER OR ANY RELATED GOODS OR SERVICES, YOUR SOLE REMEDY SHALL BE TO TERMINATE YOUR SUBSCRIPTION AS PROVIDED IN SECTION 7 OF THIS AGREEMENT.
PROVIDER AND ALL RELATED GOODS AND SERVICES, INCLUDING RELATED CONTENT AND TECHNOLOGY, ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. NEITHER PROVIDER NOR PROVIDER AFFILIATES (DEFINED BELOW) MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO PROVIDER OR ANY RELATED GOODS AND SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO PROVIDER AND ANY RELATED GOODS AND SERVICES ARE HEREBY DISCLAIMED INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINTERFERENCE WITH ENJOYMENT AND USE, AND NONINFRINGEMENT. BY WAY OF ILLUSTRATION WITHOUT LIMITATION, NO WARRANTY IS GIVEN THAT PROVIDER WILL FULFILL ANY OF MEMBER’S PARTICULAR REQUIREMENTS, THAT PROVIDER IS ERROR FREE, THAT ACCESS TO PROVIDER WILL BE UNINTERRUPTED, OR THAT ANY INFORMATION PROVIDED IN CONNECTION WITH PROVIDER IS ACCURATE. MEMBER ASSUMES ALL RISK OF USING PROVIDER, INCLUDING ALL RISK FOR ANY INJURY OR OTHER DAMAGE RESULTING FROM MEMBER’S ACTIVITIES.
WITHOUT LIMITING THE FOREGOING, PROVIDER DOES NOT GUARANTEE THAT ITS SECURITY PROCEDURES WILL PREVENT THE LOSS OF, ALTERATION OF, OR IMPROPER ACCESS TO MEMBER INFORMATION. MEMBER AGREES THAT PROVIDER AND PROVIDER AFFILIATES ARE NOT RESPONSIBLE FOR ANY COMPROMISE OF MEMBER INFORMATION.
PROVIDER IS NOT RESPONSIBLE FOR THE CONTENT OF ANY MEMBER SITE, AND DOES NOT VERIFY, ENDORSE OR OTHERWISE VOUCH FOR THE CONTENT OF ANY MEMBER SITE. FURTHER, PROVIDER IS NOT RESPONSIBLE FOR THE DELIVERY, QUALITY OR OTHER ASPECTS OF ANY GOODS OR SERVICES PROMOTED, SOLD OR OTHERWISE PROVIDED BY MEMBERS OR AFFILIATES OF MEMBERS THROUGH MEMBER SITES OR OTHERWISE. MEMBERS ARE SOLELY RESPONSIBLE FOR THEIR CONTENT AND ACTIVITIES. MEMBERS MAY BE HELD LEGALLY RESPONSIBLE IF THEIR MEMBER SITE INCLUDES ILLEGAL CONTENT OR IF MEMBERS OTHERWISE VIOLATE APPLICABLE LAWS.
13. Limitation on Liability
MEMBER ACKNOWLEDGES AND AGREES THAT MEMBER’S SOLE REMEDY IS THE RIGHT TO TERMINATE MEMBER’S SUBSCRIPTION AS SET FORTH ABOVE. MEMBER FURTHER UNDERSTANDS AND AGREES THAT NEITHER PROVIDER NOR ANY PROVIDER AFFILIATES (AS DEFINED BELOW) SHALL HAVE ANY LIABILITY FOR ANY DAMAGES, WHETHER GENERAL, SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, WHETHER OR NOT FORESEEABLE AND WHETHER BASED ON CONTRACT, TORT OR STATUTE. MEMBER EXPRESSLY ACKNOWLEDGES AND AGREES THAT PROVIDER IS PROVIDING RELATED GOODS AND SERVICES IN RELIANCE ON THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS AGREEMENT, AND FURTHER ACKNOWLEDGES AND AGREES THAT SUCH DISCLAIMERS AND LIMITATIONS ARE REASONABLE. AS USED IN THIS AGREEMENT, “PROVIDER AFFILIATES” MEANS RELATED COMPANIES OF PROVIDER (INCLUDING COMPANIES THAT CONTROL PROVIDER, THAT ARE CONTROLLED BY PROVIDER, OR THAT ARE UNDER COMMON CONTROL WITH PROVIDER), DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, OTHER AGENTS, CONTRACTORS AND LICENSORS OF PROVIDER AND ITS RELATED COMPANIES, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING PROVIDER.
BY WAY OF ILLUSTRATION WITHOUT LIMITATING THE FOREOING, MEMBER AGREES THAT NEITHER PROVIDER NOR ANY PROVIDER AFFILIATES SHALL BE LIABLE TO MEMBER IN ANY MANNER WHATSOEVER FOR (I) ANY DAMAGES RESULTING FROM ANY CAUSE BEYOND PROVIDER’S REASONABLE CONTROL; (II) ANY DAMAGES RESULTING FROM A MEMBER’S FAILURE TO COMPLY WITH THIS AGREEMENT; (III) ANY DAMAGES RESULTING FROM ANY INACCURACY IN ANY INFORMATION PROVIDED THROUGH PROVIDER; (IV) ANY LOSS OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (V) PUNITIVE DAMAGES; (VI) ANY DAMAGE INCURRED IN CONNECTION WITH DEALING WITH THIRD-PARTY VENDORS OR THEIR CONTENT, GOODS OR SERVICES OR THEIR SITES.
IN THE EVENT ANY LIMITATION ON LIABILITY IS HELD TO BE UNENFORCEABLE, THE AGGREGATE LIABILITY OF PROVIDER AND PROVIDER AFFILIATES ARISING FROM OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) SHALL IN NO EVENT EXCEED ANY AMOUNTS MEMBER HAS PAID TO PROVIDER DURING THE THEN-PREVIOUS TWELVE (12) MONTH PERIOD FOR ANY PROVIDER SERVICE.
THE LIMITATIONS IN THIS AGREEMENT APPLY TO ALL CLAIMS REGARDLESS OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING BREACH OF CONTRACT (EVEN IF IN THE NATURE OF A BREACH OR FAILURE OF A FUNDAMENTAL TERM) OR TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, FRAUD OR MISREPRESENTATION.
WHETHER OR NOT EXPRESSLY STATED IN THIS AGREEMENT, MEMBER ACKNOWLEDGES AND AGREES THAT ALL DISCLAIMERS AND LIMITATIONS OF LIABILITY APPLICABLE TO PROVIDER UNDER THIS AGREEMENT ALSO APPLY EQUALLY TO PROVIDER AFFILIATES AS DEFINED ABOVE.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY. IN THOSE JURISDICTIONS PROVIDER’S LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. MEMBER RIGHTS MAY OTHERWISE VARY FROM JURISDICTION TO JURISDICTION.
(a) Applicable Law and Forum; Attorneys Fees. This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Orange County, California. In the event Provider is required to incur any attorneys fees, courts costs or other expenses in connection with litigating its right under this Agreement with respect to you, you shall reimburse Provider for such expenses upon demand.
(b) Assignment; Change in Control.
This Agreement may not be assigned by you without the prior written approval of provider but may be assigned without your consent by provider to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of provider directly or indirectly owning or controlling 50% or more of you shall entitle provider to terminate this Agreement for cause immediately upon written notice.
(c) Severability. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect, and the provision held to be invalid or unenforceable shall be automatically amended to most closely approximate the original provision on terms that are valid and enforceable and the adjudicating authority holding such provision invalid or unenforceable shall make such amendment accordingly. Any provision held to be invalid or unenforceable in any particular jurisdiction shall not, as a result, be considered invalid or unenforceable in any other jurisdiction.
(d) Notices. All notices to you may be given by any reasonable means including email, conventional mail, facsimile, by posting such notices on the Web Site. All notices to Provider must be by email directed to the following address: contact2 (at) altadyn.com and must include a descriptive title in the subject line giving Provider adequate notice of the contents of the email.
(e) Non-Waiver. Provider shall not be deemed to have waived any right or provision of this Agreement unless a waiver is expressly acknowledged and agreed to by Provider in a signed writing. Provider’s delay in exercising or enforcing any right or provision of this Agreement shall not be construed to constitute a waiver of such right or provision.
(f) Entire Agreement. This Agreement and related documents comprise the entire agreement between you and Provider relating to its subject matter and supersede any and all prior understandings or representations between the parties regarding the subject matter hereof. This Agreement shall be the sole source of any obligations of Provider with respect to the subject matter hereof and shall control over any documents or information that are alleged to impose conflicting obligations on Provider, including information on this Web Site. This Agreement may not be modified except as provided in Section 4 of this Agreement. Specific goods and services may be subject to additional or different terms and users of such goods and services shall be bound thereby.
(g) Assignment. Your subscription to The Web Site and any of your rights or obligations under this Agreement may not be assigned or otherwise transferred without Provider’s express written consent, and any such transfer shall be void without such consent. Provider reserves the right to assign and otherwise transfer any and all rights and obligations under this Agreement to any third-party without notice including any party that acquires all or substantially all of Provider’s business or assets relating to The Web Site.
(h) Interpretation. Any law that provides that the language of a contract shall be construed against the drafter shall not apply to this Agreement. When used in this Agreement, the term “include” or “including” means “including but not limited to” whether or not specifically stated. The section titles in this Agreement are solely used for convenience and shall not be construed to alter the meaning of the actual provisions of this Agreement. All decisions and determinations that may or must be made by Provider under this Agreement are within the sole discretion of Provider whether or not expressly stated.