Last Updated Date: October 10, 2014
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TOU, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SITE. IF YOU DO NOT AGREE TO THESE TOU, THEN YOU ARE PROHIBITED FROM USING OR ACCESSING THE SITE. If you accept or agree to these TOU on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or legal entity to these TOU and, in such event, “you” and “your” will refer and apply to that company or legal entity.
Certain areas of the Site, including, but not limited to, the areas of the Site through which you may purchase our products, may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions (“Product-Specific Terms”). If there is a conflict between these TOU and the Product-Specific Terms, the Product-Specific Terms will take precedence with respect to your use of or access to that area of the Site.
In order to access or use certain features of the Site you may be required to create an account (“Account”) and become a “Registered User” of the Site. During the registration process you may be required to provide certain information and establish a username and a password. By registering for an Account, you represent and warrant that you are not a minor. You agree to provide accurate, current and complete information during the registration process and to update such information as needed. ACTIVEON reserves the right in its sole discretion to refuse to keep Accounts for, or provide any services to, any individual. You are responsible for safeguarding your password and for restricting access to your computer. You agree to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions and all use under your Account shall be deemed to be use by you. You will immediately notify us of any unauthorized use of your Account. Transfer of an Account by you to any other person or entity without our prior written permission is strictly prohibited.
Ownership and Intellectual Property
You should assume that everything that you read or see on the Site is copyrighted or otherwise protected and owned by us or some third party who licensed to us the right to use such material. You will not remove, alter or obscure any copyright, trademark or other proprietary rights notices incorporated in or accompanying the Site or Content (as defined below).
Unless otherwise indicated, all trademarks, service marks, logos, trade names and any other proprietary designations of ACTIVEON used herein are trademarks or registered trademarks of ACTIVEON. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners. The use or misuse of any of these marks or other information is strictly prohibited. Nothing contained in the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right in and to the trademarks without the express written permission of ACTIVEON or the applicable third party.
License to Use
“Content” on the Site means any links, text, graphics, images, music, audio, video, photos, information, code, or other materials available on the Site or through the Site. Subject to your compliance with these TOU, ACTIVEON grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Site, and to access, use, view and print any Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site or Content, except as expressly permitted in these TOU. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by ACTIVEON or its licensors, except for the licenses and rights expressly granted in these TOU. This grant of permission is not a transfer of title. This license shall automatically terminate if you violate any of these restrictions and may be terminated by us at any time. Upon termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format and cease to use the Site.
User Submitted Content
We may, in our sole discretion, permit you to submit, post, upload, publish, e-mail, send or transmit Content on or through the Site. Upon submission, you are giving the Content to us free of charge, and the Content will be treated as non-confidential and non-proprietary and may be used by us for any purpose, without your consent or any compensation to you or anyone else. We may occasionally ask you to resubmit Content to us in a different form. By making available any Content through the Site, you hereby grant to ACTIVEON a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, reference, store, cache, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Content, in any form, medium or technology now known or later developed, in whole or in part, for any purposes, including for both commercial and non-commercial purposes. You also hereby grant each user of the Site a non-exclusive license to access your Content through the Site, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Site and under these TOU.
You acknowledge and agree that you are solely responsible for all Content that you make available through the Site. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Content that you make available through the Site or you have all rights, licenses, permissions, consents and releases that are necessary to grant to ACTIVEON the rights in such Content, as contemplated under these TOU; and (ii) neither the Content nor your posting, uploading, publication, submission or transmittal of the Content or ACTIVEON’s use of the Content (or any portion thereof) on, through or by means of the Site or otherwise will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
We may from time to time monitor, review and, in our sole discretion, modify or delete any postings you make on the Site or through the Site; however, we are not obligated to do so. Whether or not we modify or remove such Content, you remain solely responsible for any Content you submit to us.
Ideas, Submissions and Feedback
For any proposals or ideas that you submit to us through the Site, you represent and warrant that you have the right to disclose such ideas or proposal to ACTIVEON and that such disclosure does not violate the rights of any other person or party.
By submitting your idea or proposal you acknowledge and recognize that ACTIVEON has a number of well-established product lines and is continually busy working on new products, services and technologies, and as such, ACTIVEON may currently or in the future be internally developing proposals, ideas or information or receiving proposals, ideas or information from others that are likely to be similar to the proposals or ideas provided by you. Accordingly, nothing in this TOU shall be construed as a representation or inference that ACTIVEON will not independently develop or authorize the development of products, services or ideas, for itself or for others that may compete with or be similar to the proposals or ideas you submit. Moreover, ACTIVEON assumes no fiduciary or confidential obligation of any kind with respect to any proposals, ideas or suggestions made by you through the Site, even if the documents are marked as confidential. You also understand and agree that ACTIVEON’s willingness to review any proposals or ideas is not an admission by ACTIVEON of novelty, priority, or originality and does not impair ACTIVEON’s right to contest existing or future patents or copyrights claiming the ideas.
If you choose to provide feedback, comments and suggestions for improvements to the Site or otherwise through the Site (“Feedback”), you acknowledge and agree that all Feedback will be the sole and exclusive property of ACTIVEON and you hereby irrevocably assign to ACTIVEON all of your right, title, and interest in and to all Feedback, including any intellectual property rights therein.
ACTIVEON respects copyright law and expects its users to do the same. ACTIVEON has adopted and implemented an infringement notification procedure that provides for the removal of Content, in appropriate circumstances. It is our policy to respond to any infringement notices and take appropriate actions under the Digital Millennium Copyright Act ( “DMCA ”) and other applicable intellectual property laws. To file a copyright infringement notification with us, you must send a written communication that includes the following:
a. Identification of the copyrighted work (or works) claimed to have been infringed;
b. Identification of the material located on our site that you claim to be infringing (Please provide reasonably sufficient information to permit us to locate the material. For example, providing the URL is an easy way for us to locate the material quickly.);
c. Explain how these materials infringe your rights (Please note that this question is optional and is not required; however, providing an answer may expedite our ability to process your request.);
d. Information reasonably sufficient for us to contact you, such as your name, address, phone number and e-mail address;
e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
f. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the copyright owner of an exclusive right that is allegedly infringed; and
g. A physical or electronic signature of a person authorized to act on behalf of the copyright owner of an exclusive right that is allegedly infringed.
Please send this written request to our designated agent at [[email protected], 10920 Via Frontera, Suite 540, San Diego, CA 92127].
Please note that the information you provide in connection with the notification may be forwarded to the person who provided the allegedly infringing material. Title 17 USC §512(f) provides civil damage penalties, including costs and attorney fees, against any person who knowingly and materially misrepresents certain information in a notification of infringement under 17 USC §512(c)(3).
You agree not to do any of the following:
● Post, upload, publish, submit or transmit any Content (including any links thereto) that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
● Use, display, mirror or frame the Site, or any individual element within the Site, ACTIVEON’s name, any ACTIVEON trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without ACTIVEON’s express written consent;
● Access, tamper with, or use non-public areas of the Site, ACTIVEON’s computer systems, or the technical delivery systems of ACTIVEON’s providers;
● Attempt to probe, scan, or test the vulnerability of any ACTIVEON system or network or breach any security or authentication measures;
● Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by ACTIVEON or any of ACTIVEON’s providers or any other third party (including another user) to protect the Site or Content;
● Attempt to access or search the Site or Content or download Content from the Site through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by ACTIVEON or other generally available third party web browsers;
● Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
● Use any meta tags or other hidden text or metadata utilizing a ACTIVEON trademark, logo URL or product name without ACTIVEON’s express written consent;
● Use the Site or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these TOU;
● Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Site or Content to send altered, deceptive or false source-identifying information;
● Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Content;
● interfere with anyone’s use or enjoyment of the Site;
● Collect or store any personally identifiable information from the Site from other users of the Site without their express permission;
● Impersonate or misrepresent your affiliation with any person or entity;
● Violate any applicable law or regulation; or
● Encourage or enable any other individual to do any of the foregoing.
ACTIVEON will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. ACTIVEON may involve and cooperate with law enforcement authorities in prosecuting users who violate these TOU.
Third Party Links
The Site may contain links to other websites and online resources maintained by third parties (“Third Party Sites”). We have not reviewed all of the Third Party Sites linked to the Site and are not responsible for the content of or any products or Sites offered on such Third Party Sites. These TOU apply only to the Site, and not to the Third Party Sites. We do not endorse or take responsibility for the content, advertising, products or other materials made available through any Third Party Site. Use of any Third Party Site is at the user’s own risk. Permission must be granted by us for any type of link to the Site.
Sweepstakes and Contests
ACTIVEON may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Site. You should carefully review the rules of each Promotion in which you participate, as they may contain additional important information. To the extent that the rules conflict with these TOU, the rules of such Promotion will control.
Right of Modification and Termination
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, this Site or your Account (or any part thereof) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site and/or your Account. Additionally, we may terminate this agreement at any time, without notice to you, if we believe, in our sole discretion, that you have breached or may breach any term or condition of this agreement, or we may terminate this agreement for our convenience. You may terminate this agreement at any time by destroying all materials received from our Site and ceasing to use or access the Site.
Disclaimers and Limitation of Liability
THE SITE AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ACTIVEON MAKES NO WARRANTY THAT THE SITE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR FREE. ACTIVEON MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SITES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SITE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ACTIVEON NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE OR CONTENT HAVE ANY LIABILITY TO YOU FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR INABILITY TO USE THE SITE OR CONTENT, OR ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, EFFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE SYSTEM FAILURE, LOSS OF DATA, OR LOSS OF USE RELATED TO THE SITE OR ANY WEBSITE OPERATED BY ANY THIRD PARTY. IF YOU ARE DISSATISFIED WITH US, ANY OF OUR SITES OR THESE TOU, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE. IN NO EVENT SHALL THE TOTAL LIABILITY TO YOU BY US OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING THE SITE.
You agree to defend, indemnify, and hold ACTIVEON, its subsidiaries and affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, brought by a third party arising out of or in any way associated with your access to or use of the Site, or your violation of these TOU.
This Site is controlled and operated from within the United States. We make no representation that the material on the Site is appropriate or available for use in other locations. If despite these conditions, you use the Site from outside the United States, you are solely responsible for compliance with any applicable local laws. These TOU shall be governed by the laws of the State of California without giving effect to any choice or conflict of law or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California, provided, however, that disputes concerning patent, federal trademark, or federal copyright matters shall be governed by federal law. You consent to jurisdiction in the State of California. Our failure to strictly enforce any right against you shall not constitute a waiver thereof. If any provision of these TOU is deemed invalid, illegal, or unenforceable such provision will be deemed amended to conform to the applicable laws and the remainder of these TOU shall remain in full force and effect. This represents the full understanding of the parties with respect to this subject matter. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you against us arising out of or related to your use of the Site must be filed within one (1) year after such claim or cause of action arose.
If you have any questions about these TOU, please contact us at: [email protected] or PO Box 261807, San Diego, CA 92126