WEBSITE USAGE AGREEMENT
Image Mechanics, LLC
This Website Usage Agreement (“Agreement”) is between you (“User”) and Image Mechanics, LLC., (“Company”). In consideration of the right to access and use the Company’s Websites, www.GetProStorage.com, (“Website”), User agrees to the terms and conditions of use set forth in this Agreement. User’s continued use of the Website indicates User’s willingness to be legally bound by the terms and conditions of this Agreement as set forth below.
1. Covenant to Read Agreement
User acknowledges that User has read the terms and conditions of use and accepts the terms thereof. USER AGREES TO READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING OR SUBSCRIBING TO THE WEBSITE. If User does not agree to these terms and conditions of use, User may not access or otherwise use the Website.
2. Company’s Control Over Website
(b) Company reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Website.
(c) Company reserves the right at all times to disclose any information as necessary to satisfy any law, regulation or government request.
(d) Company reserves the right, at its sole discretion, to change, modify, add or remove any portion of this Agreement, in whole or in part, at any time. Notification of changes in the Agreement will be posted on the Website. Amendments to the Agreement will take effect immediately upon being posted to the Website, and User’s continued use of the Website constitutes User’s acceptance thereof.
(e) Company may change, suspend or discontinue any aspect of the Website at any time, including, but not limited to, content, database, hours of availability, and equipment needed for access or use.
(f) Company may also impose limits on certain features and services or restrict User’s access to parts or the entire Website without notice or liability.
3. Intellectual Property Rights
(a) The Website is protected by copyright under United States copyright laws, international conventions, and other copyright laws. The Company’s logo, slogans, and other distinctive designs are protected by the state, national, and international laws of trademark, trade dress, and unfair competition.
(b) All materials contained within the Website (the “Content”) are protected by copyright, and are owned or controlled by Company or the party credited as the provider thereof. User will abide by any and all additional copyright notices, information, or restrictions contained in any Content on the Website.
(c) User MAY NOT download and make copies of the Content and other downloadable items displayed on the Website for personal, noncommercial use. Copying or storing of any Content for other than User’s personal, noncommercial use is expressly prohibited without the prior written consent of the Company or the copyright holder identified in the individual Content’s copyright notice.
(d) All of the content featured or displayed on this site, including, but not limited to photographs, images, graphics, moving images, text, sound, illustrations and software (‘Content’), are owned by Company and/or its content providers. All elements of this site, including, but not limited to, the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights including contract law pursuant to this agreement. No Content may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, without Company’s prior written permission, except that you may view the Content on any single computer monitor for your personal, non-commercial use only, provided you keep intact, without change all copyright and other proprietary notices.
(e) Modification of the Content or use of the Content for any other purpose is a violation of Company’s copyright and/or other proprietary rights. THE PHOTOGRAPHIC IMAGES ON THIS SITE ARE NOT ROYALTY-FREE. You agree to indemnify Company and its affiliates against all losses, liabilities, expenses, costs or damages, including attorneys’ fees incurred by any or all of them as a result of your breach of the terms of this agreement or your unauthorized use of the Content.
(a) YOU ACKNOWLEDGE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, TRANSMITTED TO THE COMPANY BY YOU MAY BE USED BY Company FOR ANY PURPOSE, INCLUDING DISSEMINATION OR SALE OF SUCH INFORMATION TO THIRD PARTIES. IF YOU ACCESS ANOTHER NETWORK OR SITE THROUGH THIS SITE, YOU MAY BE SUBJECT TO SUBSTANTIALLY DIFFERENT PRACTICES, INCLUDING PRACTICES THAT GOVERN YOUR PRIVATE EMAIL AND DISSEMINATION OF INFORMATION THAT MAY AFFECT YOUR PRIVACY. THE TRANSMISSION OF INFORMATION TO OR FROM THIS SITE MAY NOT BE SECURE.
YOUR FURTHER ACKNOWLEDGE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, TRANSMITTED TO Company BY YOU BY ANY MEANS WHATSOEVER MAY BE USED BY Company FOR THE PURPOSE OF MONITORING, POLICING AND PROSECUTING CLAIMS FOR ANY SUSPECTED OR ACTUAL VIOLATION OF COMPANYíS COPYRIGHT AND/OR OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY KIND. COMPANY MAY SHARE THIS INFORMATION WITH LEGAL COUNSEL, INVESTIGATORS, OTHER AGENTS, OR THIRD PARTIES.
5. Legal Disclaimers and Notices
DISCLAIMER: THIS WEBSITE AND ITS CONTENT ARE PROVIDED “AS IS” AND IMAGE MECHANICS, LLC, AND ITS ASSIGNS AND DESIGNEES (‘Company’) EXCLUDE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. Company DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED ON OR IN THIS WEBSITE WILL BE UNINTERPRETED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER MAKES IT AVAILABLE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. Company DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT IN THIS SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT Company) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY OR MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY: Under no circumstances, including, but not limited to negligence, shall Company be liable for any special or consequential damages that result from the use of, or the inability to use, the Content in this site, or the site, even if Company or Company’s authorized representative have been advised of the possibility of such damages. Applicable law may or may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In no event shall Company’s total liability to you for all damages, losses, liabilities of any kind, and causes of action (whether in contract, tort (including, but not limited to, negligence) or otherwise) exceed the amount paid by you, if any, for accessing this site.
6. User’s Covenants
User represents warrants and covenants:
(a) That User shall not upload post or transmit to or distribute or otherwise publish through the Website any materials which:
(i) Restrict or inhibit any other user from using and enjoying the Website,
(ii) Are unlawful, threatening, harassing, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent,
(iii) Constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law,
(iv) violate, plagiarize, or infringe the rights of third parties, including, but not strictly limited to, copyright, trademark, patent, rights of privacy or publicity or any other proprietary rights,
(v) contain any viruses, Trojan horses, worms, time bombs, cancel bots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information,
(vi) Contain any information, software or other material of a commercial nature,
(vii) Contain advertising of any kind, or
(viii) Constitute or contain false or misleading indications of origin or statements.
(b) User further promises not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any business being conducted on the Website. User may not take any action which imposes an unreasonable or disproportionately large load on the Website’s infrastructure (e.g., the sending of mass e-mail or junk mail, known as “Spamming”). User may not disclose to or share User’s account number or password with any third parties or use the password for any unauthorized purposes. User shall not link to the Website in any manner that would bypass the Website’s home page. User shall not “frame” the Website or any portion thereof.
7. User’s Acknowledgments
(b) User acknowledges that transmissions to and from this Website are not confidential and that User’s Communications may be read or intercepted by others.
(c) User acknowledges that any reliance upon any opinion, advice, statement, memorandum, information, or other material contained in the Website or any of its links shall be at User’s own risk.
(d) User is responsible for any and all fees, taxes, and expenses which may be incurred through the use of this Website or as the result of the purchase of products/services from within it.
(a) The Website contains links and pointers to other World Wide Web Internet sites, resources, and sponsors of the Website. Links to and from the Website to other third party sites, maintained by third parties, do not constitute an endorsement by Company or any of its subsidiaries or affiliates of any third party resources, or their contents.
(b) The Company does not represent or endorse the accuracy or reliability of any advice, opinion, or other information displayed or distributed through the Website.
(c) Company is not an author or editor of materials posted to the Website by users, and Company is not responsible for any such materials posted thereby.
(d) Company disclaims any and all responsibility for content contained in any third party materials provided through links on the Website.
(e) Company’s sole responsibility and liability for goods and services offered through the Website, whether offered by the Company or third parties, is to refund the purchase price.
8. Disclaimer of Warranty
THE WEBSITE CONTAINS LINKS AND POINTERS TO OTHER WORLD WIDE WEB INTERNET SITES, RESOURCES AND SPONSORS OF THE WEB SITE. LINKS TO AND FROM THE WEBSITE TO OTHER THIRD PARTY SITES, MAINTAINED BY THIRD PARTIES, DO NOT CONSTITUTE AN ENDORSEMENT BY COMPANY OR ANY OF ITS SUBSIDIARIES OR AFFILIATES OF ANY THIRD PARTY RESOURCES, OR THEIR CONTENTS.
9. Indeminification. To the extent permitted by applicable law, You agree to indemnify and hold harmless, and upon Company’s request, defend, Company, its directors, officers, employees, independent contractors and agents (each a “Company Indemnified Party”) from any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, attorneys fees and court costs (collectively, “Losses”), incurred by a Company Indemnified Party and arising from or related to any of the following: (i) Your breach of any certification, covenant, obligation, representation or warranty in this Agreement; (ii) any claims that you have violated or infringed any third party intellectual property or proprietary rights including but not limited to any metadata, related trademarks and logos, or images and other materials that You provide to Company under this Agreement; or (iii) Your use of the Company’s Software or services.
10. Dispute Resolution and Choice of Law. This Agreement shall be governed by the procedural and substantive laws of the State of California, notwithstanding any otherwise applicable choice or conflict of law provisions to the contrary. In the event that the parties cannot negotiate a resolution of any dispute, then the parties agree to submit their dispute to mediation, and then to arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of any meditation or arbitration shall be Los Angeles California. The prevailing party in any arbitration shall be entitled to reasonable attorneys’ fees and expenses.
11. Equitable Relief. Notwithstanding the foregoing, User acknowledges that the performance of its obligations hereunder and the rights and licenses assigned to Company hereunder may be of a unique, unusual, extraordinary and intellectual character which could give them a special value, the loss of which may not be reasonably or adequately compensated in damages in an action at law, that a breach by User of this Agreement may cause Company great and irreparable injury and damage and, therefore, while expressly reserving all of Company’s rights and remedies hereunder, Company will be entitled to seek injunctive relief to prevent such injury or damage.
12. Merger. This Agreement shall not be terminated by the merger or consolidation of Company into or with any other entity.
13. Confidentiality. Other than as may be required by law, or governmental authority, the parties agree that neither of them shall publicly divulge or announce, or in any manner disclose to any third party any of the specific terms and conditions of this Agreement and the parties further warrant and agree that none of their officers and directors will do so as well.
14. Assignment/Modification. Neither party shall assign their rights or delegate their duties hereunder without written consent of the other party. No amendment, change or modification of this Agreement shall be valid unless in writing signed by the parties hereto
15. Headings. Paragraph headings, as used in this Agreement, are for convenience only and are not a part hereof, and shall not be used to interpret any provision of this Agreement.
16. Waiver. Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.
17. Entire Understanding. This document constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.
18. Unenforceability of Provisions. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
19. Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given. Notices to Company shall be sent to 2801 Ocean Park Blvd Suite 188 Santa Monica CA 90405. Any party hereto may change its address for purposes of this Paragraph by written notice given in the manner provided herein.
20. Return Policy on Merchandise
Merchandised purchased at the Company web site (www.GetProStorage.com) is returnable for a refund, subject to the following conditions:
21. Counterparts. This Agreement may be executed shall be as valid and enforceable under the Uniform Electronic Transactions Act as well as US ESign Act of 2000 as the original signature.