Terms of Use
Revision date: 09.20.2007
1. PURPOSE OF WEBSITE
For the purposes of this Agreement, the term "NeoClarus" shall mean and include unless otherwise specified, its subsidiaries, its affiliates, successors-in-interest, assignees, and other authorized licensees including the successors-in-interest, assignees or authorized licensees of its subsidiaries or affiliates.
The objective of this website and/or its associated services ("Website") including any interactive and discussion areas (collectively "Interactive Areas"), is for the sake of convenience of NeoClarus' current and prospective customers. However, access and use of this Website and/or rendering of any services through the Website are subject to the terms of this Agreement only and any other representation relating thereto is hereby rendered void. All prices and other amounts appearing on the Website are quoted in United States (US$) dollars. Any advertisements appearing on this Website mean that they are only invitations to you to make offers to purchase services or products and are not offers to sell any service or merchandise.
2. ACCEPTANCE OF AGREEMENT
This Agreement governs your use of this web site and/or its associated services ("Website"), including any Interactive Areas, which are owned and operated by NeoClarus Inc., its subsidiaries, affiliates, divisions and related companies (collectively "NeoClarus"). Each of such terms as "you", "yours", "user" in this Agreement shall include yourself and/or all persons you represent including any other natural persons and any type of incorporated or unincorporated organization.
Whenever you use the Website, you automatically signify your acceptance to the terms of this Agreement as they then read and agree to be bound thereby. If for any reason, you do not agree to the provisions, you are not authorized to access or in any manner use the services in the Website including any Interactive Areas. You should also note that the Website services are for the sake of convenience and the contents thereof are for information only and NeoClarus does not and nor does it intend to provide any advice or recommendation, or sell any product or service other than as provided for on the Website relating to its products and/or services.
Any other written agreement you may have with NeoClarus shall be in addition to this Agreement but the terms of this Agreement shall govern should there be conflicting provisions unless expressly overridden in such other agreement.
3. AUTHORITY TO USE THE WEBSITE
You are authorized to use this Website only if you are a resident of the United States and have reached the age of majority in the state in which you live so that you can enter into legally binding contracts. You are permitted to use this Website only for lawful use as envisioned by this Website. You should not access or use this Website if you plan on using it or actually use it in any manner that it is not meant for, or is unauthorized or is unlawful in any manner. You must determine for yourself whether your use of the Website is lawful under applicable laws. NeoClarus reserves the right to request, check or ascertain your identification, age or other particulars to seek to ensure that your usage is lawful. NeoClarus has and reserves the full continuing right, at any time, to refuse access or use, or discontinue the current use by any person of this Website at its sole and absolute discretion for any reason without liability to any person. You understand that you alone are responsible for providing, at your expense, any access to the Internet and any required equipment. You further understand that NeoClarus may at any time change or discontinue any aspect, availability or feature of the Website include any technical specifications for access or use of the Website.
You may use this Website only to transmit data originating from the United States. Until such time that this Website provides for it, you are not authorized to transmit data which would violate the laws of the country from which it originated or which otherwise contains information that may not be transmitted online unless certain terms are agreed to such as enacted by some European nations. Transmittal of such prohibited data shall be your responsibility and NeoClarus shall in no way be responsible for any consequences flowing therefrom.
4. CHANGES TO AGREEMENT
At its sole discretion, NeoClarus may at any time, without notice or liability to you or to any other person, change this Agreement (or any one or more of its terms), modify the Website or the rules for using the Website. It is your responsibility to check the Agreement regularly for any such changes. Access or use of the Website after any revision thereto, will be considered to mean your acquiescence and acceptance of the terms of this Agreement (as amended from time to time) and you will then be bound by its terms. This Agreement may be modified only by NeoClarus.
5. OWNERSHIP AND WEBSITE USAGE
The entire Website (including all content such as but not limited to one or more of the following: page headers/footers, logos, scripts, words, phrases, icons, clips, graphics, buttons, presentation, arrangement, coordination, enhancement and selection of information and the text, graphical, multimedia (audio and/or video), images, software, designs, applications, data, and other elements available on or through the Website) is the property of NeoClarus (and possibly of some other parties), and is protected by United States and international copyright, trademark and other intellectual property laws possibly in many jurisdictions. Your use of the Website does not transfer to you any ownership or other rights in and to the Website or to any of its contents. You have a license to use the Website only for the duration that you are using it in a manner that is consistent with its objectives and for lawful purposes. Any use of the Website other than as mentioned herein shall result in an automatic revocation of the license to use with no liability on NeoClarus' part to you or to any other person.
'NeoClarus' is a mark that is owned by NeoClarus. All trademarks, service marks, and any other identification marks ("Marks"), whether registered or not, are the property of NeoClarus (or other respective owners and licensees) and you are given no right or license, express or implied, to use such Marks in any manner.
The Website pages may be printed provided that they are not modified in any manner and all contents therein, including but not limited to visible or invisible, marks including trademarks, disclaimers, notices, and other items of identification, are not modified, removed or otherwise altered in any manner. The Website and its content may not be published, transmitted, assigned or otherwise transferred, copied, imitated, reproduced, republished, uploaded, posted, transmitted, be the source of derivative works, reverse-engineered, modified, indexed, catalogued, mirrored or distributed in any way, in whole or in part, without the express prior written consent of NeoClarus. You may not frame, mirror, scrape, data-mine, sell or resell, in whole or any part, the Website and/or its contents, or access to the Website. You may not use or copy any of the software that is used to operate or maintain the Website except as necessary to use the Website in terms of this Agreement.
In the event that you download any item from the Website that requires you to enter into any software agreement, you shall be bound by the terms of such software agreement with regard to such download. You understand that NeoClarus may not necessarily be responsible in any manner for such software agreement and to the extent that NeoClarus is not directly responsible in for the products, services or items you have downloaded, are purchasing or subscribing to, NeoClarus disclaims any liability for the same and provides no warranties whatsoever including any warranty of merchantability or fitness for any particular purpose. The terms of this Agreement shall nevertheless continue to bind you in addition to the provisions of the software agreement.
6. PROHIBITED ACTIVITY
You are absolutely prohibited from posting on the Website any content that in any manner (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains viruses, worms or other contaminating or destructive features; (c) violates the rights of others, such as any content that infringes any copyright, trademark, patent, trade secret, other intellectual property or other rights, or violates any person's right of privacy; (d) links this Website to any other website that is obscene or pornographic; (e) sells or advertises for rent, lease, license, purchase or sale any service or merchandise; (f) takes or encourages action that would violate the letter and spirit of this Agreement; or (g) encourages any action that violates any applicable law or public policy.
7. ERRORS, SERVICES AND PRICES
Although NeoClarus does its best to ensure current and accurate information on its Website, it is possible that errors in the form of misprints, omissions, inaccurate information and such other mistakes may yet creep in. NeoClarus cannot warrant or guarantee that the content on this Website is absolutely accurate in all aspects or that the services offered are in fact continuing to be offered. Accordingly, NeoClarus reserves the right, unilaterally and without prior notice, to do any of the following: (a) rectify any error, inaccuracy or omission at any time without prior notice or liability to you or to any other person; (b) change any service offered and/or any specific information relating thereto (e.g. turnaround times); (c) modify the pricing, fees and other charges; (d) reject, correct or cancel any order or terminate any service including any accepted service; (e) revoke or modify any offers of service; (f) do any such thing that NeoClarus believes will in the end enhance the value of any service it provides to the majority of its clients.
8. NO LINKING
You may not link this Website without the express prior written permission of NeoClarus. If you wish to link this Website to any other website, please contact NeoClarus and specify the terms for such linking including the identity of the person proposing to link the website and the actual identity of the person owning the linked website and of the website itself. NeoClarus may at its sole discretion, at any time and without any notice or liability, cancel and revoke any permission it may give to link this Website.
9. CONTENT MANAGEMENT
NeoClarus does not review and cannot monitor all the content posted by users on the Website and is not responsible for such content. Nor does NeoClarus necessarily represent or endorse the accuracy or reliability of any content posted in any Interactive Area. The content in any Interactive Area is the view of the users of the Website and may not necessarily represent the views of NeoClarus. You hereby acknowledge that any reliance placed by you on any content particularly in the Interactive Area shall be at your sole risk. However, NeoClarus reserves the right to delete, move or edit any content (including content posted in any Interactive Area) that it may determine, in its sole discretion, violates or may violate this Agreement or is otherwise unacceptable. You shall at all times remain solely responsible for all content posted by you including for any claims resulting in damages, losses, attorneys' fees, court costs etc. that NeoClarus may suffer and to that extent you hereby indemnify NeoClarus in full.
10. LOGIN NAMES AND PASSWORDS
NeoClarus may give certain users access to all or part of the Website including to any Interactive Areas by issuing a login name and password (collectively "Access Codes"). All Access Codes issued are and shall remain the property of NeoClarus even if such Access Codes have been chosen by individual users. NeoClarus may in its sole discretion and without notice or liability, suspend or even terminate such Access Codes.
Each user who has been issued Access Codes is hereby advised that the user: (i) shall be solely responsible for maintaining the security and confidentiality of the Access Codes including keeping them in a safe and secure place if need be; (ii) should not disclose the Access Codes to any other person or permit any other person to use them; (iii) uses the Access Codes only in accordance with the terms of this Agreement; (iv) shall logout of the terminal once the session or use of the Website is terminated; and (v) inform NeoClarus promptly should s/he suspect that the Access Codes have been lost or stolen or that their confidentiality is no longer valid.
All users who are issued Access Codes are advised to maintain the confidentiality of such Access Codes and not to share them with others. Every user is solely responsible for the Access Codes issued to him/her by NeoClarus. NeoClarus may at any time and at its discretion verify the identity of a user but is not obligated to do so. If it is not satisfied with any evidence furnished by the user as to the user's identity, NeoClarus may terminate the access or use of the Website (or of any part) by the user. Every user is hereby made aware that NeoClarus may act on any communication that is made to NeoClarus based on access or use of the Website by way of Access Codes and that the user who has been issued such Access Codes shall be solely responsible for such communication and for any action taken by NeoClarus pursuant thereto.
You agree to indemnify, defend and hold NeoClarus, its subsidiaries, affiliates, successors-in-interest, assignees, and other authorized licensees including the successors-in-interest, assignees or authorized licensees of its subsidiaries or affiliates and their respective officers, directors, employees, owners, agents, information providers and licensors (collectively, "NeoClarus Parties" and individually "NeoClarus Party") harmless from and against any and all claims, liability, losses, costs and expenses (including attorneys' fees) incurred by NeoClarus Parties in connection with any use or alleged use of the service under your user name by any person, whether or not authorized by you. NeoClarus reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with NeoClarus' defense of such claim.
11. UNSOLICITED COMMUNICATION
You are informed that NeoClarus does not request or solicit ideas or suggestions regarding its Website and/or the services it seeks to render (collectively "Suggestions"). However, should any Suggestion be communicated to NeoClarus, you shall be deemed to have given NeoClarus a perpetual, royalty-free, worldwide, transferable, irrevocable, non-exclusive, right and license to such Suggestions and such Suggestions may be, in whole or in part, sub-licensed, assigned, or exploited in any manner including for any derivative ideas, concepts, etc. and may be used commercially, for profit, or otherwise. NeoClarus shall not be obligated to provide any attribution or compensation to you or to any other party for such Suggestions and NeoClarus may further develop such Suggestions in any manner whatsoever without reference to you in any manner. By communicating such Suggestions to NeoClarus, except as may be provided herein, you are giving up any and all intellectual property, moral or other right, title, interest, in and to such Suggestions and NeoClarus shall become the sole and absolute owner of all such derivative ideas, concepts, processes, or development.
12. USER INFORMATION
You will be requested to provide your information for registration purposes including your name and email, and for any services that you order, your payment information such as credit card numbers, expiration dates, billing address and such other information as needed for billing purposes. You should promptly update the information from time to time or as needed but not later than seven (7) days from the date of any change. You will be required to provide true and accurate information that is both current and complete and you will be solely responsible for the information that you provide. You should know that NeoClarus will rely on such information and take action based on the information you provide. Therefore if any information is incorrect, inaccurate or incomplete, NeoClarus may incur loss or liability as a result and NeoClarus may seek to recover such loss or liability from you. Consequently, you will then be liable to NeoClarus not only for such loss or liability but for any ensuing litigation costs including attorneys' fees, damages, and other miscellaneous costs.
13. DISCLAIMERS AND INDEMNITY
USER ACCESS TO THE WEBSITE AND USE OF THE WEBSITE IS AT USER'S OWN AND SOLE RISK. THE WEBSITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND NEOCLARUS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, GUARANTEES OR WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE WEBSITE'S ACCESSIBILITY, WEBSITE CONTENT'S ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, PERFORMANCE OR DURABILITY, ALL OF WHICH ARE DISCLAIMED BY NEOCLARUS TO THE FULLEST EXTENT PERMITTED BY LAW.
14. LIMITATIONS AND EXCLUSION OF LIABILITY
NEOCLARUS AND ITS PROVIDERS WILL NOT BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE ARISING FROM OR IN ANY MANNER RELATING TO THE WEBSITE OR TO THIS AGREEMENT INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BUSINESS, MARKETS, REVENUES, PROFITS, REPUTATION OR GOODWILL, ANTICIPATED OR OTHERWISE, OR ECONOMIC LOSS, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LAW OR EQUITY), WHETHER OR NOT CAUSED ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING WITHOUT LIMITATION GROSS NEGLIGENCE AND WILFUL BREACH) BY NEOCLARUS OR ANY PERSON FOR WHOM NEOCLARUS IS RESPONSIBLE, AND EVEN IF NEOCLARUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE BEING INCURRED.
THE EXCLUSION OF SOME OR ALL REPRESENTATIONS, GUARANTEES AND WARRANTIES MAY NOT APPLY TO YOU DEPENDING ON YOUR JURISDICTION. HOWEVER, TO THE EXTENT POSSIBLE, NEOCLARUS SHALL SEEK TO APPLY THE EXCLUSIONS ABOVE.
15. PERSONAL INFORMATION
NeoClarus will collect, use and disclose personal information in accordance with its Privacy Policy, which is available by clicking here and which may be changed from time to time by NeoClarus at its discretion without any notice or liability to you or to any other person. NeoClarus shall make the amended Privacy Policy accessible to you through the Website. You may be required to disclose such personal information each time you access or use this Website and by so doing, you shall be deemed to have subscribed to the terms of this Agreement and of the Privacy Policy as amended from time to time.
16. OTHER SITES/RESOURCES
NeoClarus may, at its discretion and for users' convenience as NeoClarus considers appropriate, include links or references to other websites (including their entire content, business, merchandise or services offered, etc.) which are owned and/or operated by other persons independent of NeoClarus ("Other Sites"). NeoClarus has no control or responsibility over these Other Sites and NeoClarus does not sponsor or endorse Other Sites in any manner unless otherwise mentioned in writing. Your use of Other Sites and your dealings with the owners or operators of Other Sites is at your own risk, and you will not make any claim against NeoClarus arising from, connected with, or relating to your access or use of Other Sites and you agree to hold NeoClarus harmless for any injury suffered by you as a result of your access or use of Other Sites. You understand that NeoClarus is not acting as your agent or fiduciary in connection with your use of the Website or any third party services whether or not provided on Other Sites.
17. TERMINATION
Notwithstanding any other provision of this Agreement, NeoClarus may in its discretion change, discontinue, modify, restrict, suspend or terminate the Website or any part of it without any notice or liability to you or any other person. NeoClarus may in its discretion and for its convenience at any time immediately terminate, temporarily or permanently, this Agreement or your permission to access and use the Website without any notice or liability to you or any other person.
If your authorization to access or use all or any part of the Website is terminated for any reason, then this Agreement and all other then existing agreements between you and NeoClarus will continue to apply and be binding upon you regarding your prior access to and use of the Website, and anything connected with, relating to or arising therefrom.
18. GOVERNING LAW; VENUE; DISPUTES
This Agreement, your access to and use of the Website, and all related matters are governed solely by the laws of the State of California, United States of America, without reference to any conflict of laws provisions. Any dispute between you and NeoClarus or any other person arising from, connected with or relating to the Website, this Agreement, or any related matters (collectively "Disputes") will be subject to binding arbitration in Santa Clara County, California where the arbitrator shall be required to provide judgement based on legal principles and reasoning to make the award binding. If the judgement is not based on legal principles or is not reasoned, the judgement may be appealed in a court of law. English shall be the governing language relating to the Disputes. The prevailing party in any legal proceedings shall be entitled to, costs, reasonable attorneys' fees and such other relief as may be awarded. You understand that neither party shall be entitled to a jury trial even if the award is appealed to a court of law. Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law with respect to the Software or Services must be commenced within one year after the cause of action accrues.
19. MISCELLANEOUS
(i) If any provision (or part thereof) of this Agreement is held to be invalid or unenforceable for any reason, then that provision (or that part thereof) will be deemed to be severed from this Agreement and the remaining provisions (including any valid part of a severed provision) will continue in full force and effect. (ii) This Agreement shall inure to the benefit and is binding upon each of NeoClarus, its subsidiaries, affiliates and their respective successors, assigns and related persons, and upon you and your heirs, executors, administrators, successors, permitted assigns and personal representatives. (iii) This Agreement or the rights and obligations under this Agreement may not be assigned by you. However, NeoClarus may assign this Agreement and its rights and obligations under this Agreement without your consent. (iv) Failure to enforce any right herein shall not be construed as a continuing waiver of that right or of any other right. (v) This is the only agreement between the parties hereto as to the subject matter herein and all other representations, oral or written, are hereby superseded and made ineffective. (vi) All residuary rights or rights not expressly granted under this Agreement shall be deemed to be reserved to NeoClarus. (vi) All provisions shall survive the termination of this Agreement as needed.