(Effective Date: February, 2019)
EACH TIME YOU USE OR ACCESS THE SERVICE, YOU AGREE TO BE BOUND BY THESE TOS AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY (OR CANNOT COMPLY WITH) THESE TOS, DO NOT USE OR ACCESS THE SERVICE. YOUR CONTINUED ACCESS AND USE OF THE SERVICE SHALL BE DEEMED TO CONSTITUTE YOUR AGREEMENT TO BE LEGALLY BOUND BY THESE TOS, AS THEY MAY BE AMENDED FROM TIME TO TIME. ANY REFERENCES HEREIN TO "YOU" AND "YOUR" REFER TO BOTH YOU AND SUCH PERSON AND ENTITY ON WHOSE BEHALF YOU ACT, IF ANY.
In some instances, both these TOS and separate terms of service, rules, policies or guidelines set forth additional conditions that may apply to a Service or product offered by the Company ("Additional Terms"). To the extent there is a conflict between the TOS and any Additional Terms, the Additional Terms will control unless the Company determines otherwise, in its sole and absolute discretion.
By completing the Service registration process, you may establish a registered user account ("Account") and become a registered user ("Registered User"), and access the Service. To create an Account, you must provide such information as may be requested during the registration process and any applicable form(s). You must provide truthful and accurate information during the Account registration process. Notwithstanding anything to the contrary, Company may approve or reject your Account registration application for any reason or no reason in its sole and absolute discretion. All such decisions shall be final and under no circumstance shall Company be obligated to provide any information regarding its decision-making process. The Company will notify you via email of its approval of your registration to the Service and issue a single PhytterDock login ID. To obtain additional PhytterDock login IDs, you must submit additional Account registration applications.
You are solely responsible for all activity on your Account and for the security of your computer system. You may not reveal your Account password to other Registered User or permit others to access your Account. The Company will not ask you to reveal your password or ever initiate any contact with you by asking for your personal information. If you forget your password, we will send it to you after we confirm your identity.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that all rights in and to the Account are and shall be owned solely and exclusively by the Company. No rights conferred to you in connection with the Service (including any Company Materials) may be transferred or assigned by you (by operation of law or otherwise including at the time of cancellation of your Account) to any third party without the prior written consent of the Company.
Service Fees and Charges. You may create an Account and use the Service by paying the applicable fees and charges which are more particularly described in the Service.
The Company may charges additional fees to access certain features of the Services or through authorized third party providers. Unless otherwise expressly agreed to in writing by the Company, all applicable fees and other charges are payable in advance and are non-refundable unless expressly provided otherwise in these TOS. The Company, in its sole and absolute discretion, may, from time to time, modify, amend, or supplement the Service fee terms and billing methods, and post those changes on the TOS page or elsewhere in the Service. Such modifications, amendments or supplements shall be effective immediately upon posting in the Service. If any change is unacceptable to you, you may cancel your Account at any time.
In addition to the foregoing, you hereby acknowledge and agree that you shall solely be responsible for and bear all telecommunication expenses, including, telephone charges, Internet connection charges and electricity charges, arising out of your use of the Services.
Billing Methods. Subject to technical problems and revisions to payment policies which may be instituted by the Company at any time without notice, you may pay for any applicable Service fees and other charges by major credit card or such other methods expressly authorized in writing by the Company.
When you provide credit card or other payment information to the Company, you represent to the Company that you are the authorized user of such credit card that is used to pay the fees and charges applicable to the subject Account. As the Account holder, you are responsible for all fees and charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account, including your family or friends. This means that, unless your Account or payment information is obtained unlawfully or fraudulently by someone other than those authorized by you to use your Account, you will be responsible for all usage and purchases on your Account.
Any dispute arising between you and any third party payment provider (including a credit card company) shall be resolved directly between you and such third party provider. Under no circumstances shall Company be liable for any obligations incurred by you to such third party provider in connection with the use of the Service. You agree to indemnify, defend and hold harmless Company, its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys fees, from third parties arising from such dispute.
Termination of Account. You have the right to terminate or cancel your Account at any time. You understand and agree that unless otherwise expressly provided for in these TOS, the cessation of the use of the Service by canceling your Account is your sole right and remedy with respect to any dispute, including but not limited to, any related to, or arising out of: (i) any term of these TOS or the Companys enforcement or application of these TOS, (ii) the Company Materials, the Registered User Content and other content available through the Service, (iii) your ability to access and/or use the Service and/or (iv) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.
You may cancel your Account by delivering an email notice to firstname.lastname@example.org. The Company reserves the right to collect accrued and unpaid fees and charges and costs owed by you. The Account cancellation shall become effective upon Companys receipt of the authorized cancellation request. Company reserves the right to collect accrued fees and charges and costs incurred by Company before Account the cancellation becomes effective. In addition, you are responsible for any fees, charges and costs incurred to third-party vendors or content providers before your cancellation.
If you violate any of these TOS, the Company may issue you a warning about the violation, or we may choose to immediately terminate your Account(s). You acknowledge and agree that the Company may terminate your Account(s) at any time for any reason or no reason in its sole and absolute discretion.
All refund requests are subject to Companys verification of the identity of the Registered User making the subject request and be made on a pro-rata basis where applicable.
In connection with the Service, you can upload, download, edit and share with other Registered Users information, files and folders (including, without limitation, image thumbnails, document previews, titles, etc.) that you submit to the Company (collectively, "Registered User Content"). You agree that your Registered User Content is wholly original with you and you exclusively own the rights to such content, including the right to grant all of the rights and licenses in these TOS without the Company incurring any third party obligations or liability arising out of its exercise of the rights thereto granted herein by you. The Company reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Registered User Content.
You hereby grant to the Company a non-exclusive, royalty-free, non-transferable, limited right and license to host, use, copy, backup, save, display, transmit, publish, modify, delete, archive, store, cache or otherwise utilize your Registered User Content in connection with Companys administration and provision of the Service. You acknowledge and agree that the Company may sublicense the foregoing license to the Companys affiliates and third party service providers solely in connection with the provision of the Service.
The Company has no obligation to monitor or enforce your intellectual property rights to your Registered User Content but has the right to protect and enforce its and its licensees licensed rights to your Registered User Content, including, without limitation, by bringing and controlling actions in your name and on your behalf (at the Companys cost and expense, to which you hereby consent and irrevocably appoint the Company as your attorney-in-fact, with the power of substitution and delegations, which appointment is coupled with an interest). You also agree and understand you will not receive any consideration or compensation for your Registered User Content.
YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE, SOFTWARE, APPLICATIONS AND THE INTERNET IS AT YOUR SOLE RISK. THE SERVICE, SOFTWARE, APPLICATIONS, THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY PROVIDES THE SERVICE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT THE COMPANY WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.
EXCEPT AS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY THE COMPANY, THE COMPANY DOES NOT PROVIDE CONNECTIONS TO EMERGENCY SERVICES AS PART OF THE SERVICE. YOU SHOULD BE AWARE THAT FURTHER DISCLAIMERS OF LIABILITY APPLY IN THE TOS, TO THE EXTENT THAT LIMITED EMERGENCY CALLING IS PROVIDED. THE COMPANY SHALL NOT BE LIABLE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSS HAS BEEN NOTIFIED TO THE COMPANY) FOR ANY CLAIM, DAMAGE, OR LOSS, ARISING FROM OR RELATING THERETO: (A) YOUR INABILITY TO USE THE SERVICE TO CONTACT EMERGENCY SERVICES, OR (B) YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE COMPANY OR ITS LICENSORS IS TO STOP USING THE SERVICE, AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE COMPANY, ITS LICENSORS OR ITS AFFILIATES BE LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE SERVICE OR USE OF THE SOFTWARE OR ANY APPLICATION. MOREOVER, IN NO CASE SHALL THE COMPANYS OR ITS LICENSORS', AFFILIATES', EMPLOYEES', OFFICERS', OR DIRECTORS' (COLLECTIVELY, "COMPANY AFFILIATES") LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO THE COMPANY FOR THE SERVICE. FURTHERMORE, IN NO CASE SHALL THE COMPANY, ITS LICENSORS OR AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF PROFITS, DATA, USE, GOODWILL, BUSINESS INTERRUPTION, OR OTHER INTANGIBLE LOSS) ARISING FROM YOUR USE OF THE SERVICE, ANY SOFTWARE, ANY APPLICATION, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF OR USERSHIP, WHETHER BASED ON WARRANTY, PRODUCT LIABILITY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT THE COMPANY OR ANY COMPANY AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, THE COMPANYS AND COMPANY AFFILIATES' LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. THE COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH THE SERVICE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
For the convenience of our registered users, the Service may provide certain links to websites provided by third parties. The Company is not responsible for the content of any other website linked to or from the Service. If you link to another website, you leave the Service and you do so entirely at your own risk. The Company provides links from the Service to other sites solely as a convenience to you and in no way should this be interpreted as a referral or endorsement of any content, sponsor or owner of any other website. THE COMPANY DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS EXPRESS OR IMPLIED AS TO ANY SUCH LINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, OWNERSHIP, VALIDITY OR LEGALITY OF ANY CONTENT OF A LINKED WEBSITE.
You agree to defend, indemnify and hold harmless the Company and its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys' fees and costs, from third parties arising from: (a) any breach of these TOS, or any applicable rules, laws or regulations, whether or not referenced herein, (b) in connection with your use of the Service, Software or any Application (c) violation of any rights of any third party, (d) use or misuse of the Software or any Application, or (e) communication spread by means of the Software or any Application. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to the Company in that matter. The obligations set forth herein shall survive termination of these TOS.
The Service can be accessed from various countries of the world. The laws of the State of California, without regard to conflicts of law provisions, will apply to all matters arising out of or in connection with the Service and your connection to and use of the Service. By accessing or using the Service, you submit and consent to the exclusive jurisdiction of state and federal courts located in the State of California with respect to any dispute or cause of action arising out of or in connection with these TOS and/or your use of the Service.
You acknowledge that the rights granted and obligations made hereunder to the Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm the Company and which cannot be replaced by monetary damages alone so that the Company shall be entitled to injunctive or other equitably relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for money damages (if any).
The information provided through the Service is not intended for distribution to or use by any person in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Company to any registration requirement within such jurisdiction or country. The Company makes no representation or warranty that any material on the Service, Software or any Application is lawful in every jurisdiction from which such content can be accessed, or is available for use in all jurisdictions. If you access or use the Service, the Software or any Application from a jurisdiction outside the State of California you are responsible for compliance with all applicable local laws. THE SERVICE IS INTENDED FOR USE BY PERSONS OVER THE AGE OF 13. BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE 13 OR OLDER, AND THAT YOU AGREE TO AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS OF THESE TOS.
The Company takes claims of infringement of intellectual property rights and violation of rights of privacy or publicity very seriously. If you believe that any of the material that is or was in our Service infringes or has infringed any rights, including copyrights or trademarks, owned by you, or by an owner for which you are authorized to act, please contact us at email@example.com.
In the event the Company decides, in its sole and absolute discretion, to give notice to a Registered User regarding the termination of the licenses granted herein, termination of an Account, revisions to payment policies, or any Changes, it may do so via email, telephone call, posting in the Service or these TOS, or such other method of notice the Company deems appropriate. Where Company decides to give such notice, any access or use of the Service after delivery of such notice constitutes acceptance by you of the noticed action.
The Software and Applications may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software and Applications as well as end-user, end-use and destination restrictions issued by national governments. This software is controlled under ECCN 5D992.b.1 of the Export Administration Regulations ("EAR") per CCATS # G047973 and thus may not be exported or re exported to or downloaded by any person in any countries controlled for anti terrorism reasons under the EAR, which include Iran, North Korea, Cuba, Syria and Sudan. EAR 742.15(a), Title 15 Code of Federal Regulations. Moreover, the software may not be exported or re exported to or downloaded by any person or entity subject to US sanctions regardless of location. The Company is making this software available to you for download only on the condition that you certify that you are not such a person or entity and that the download is not otherwise in violation of United States export control and sanctions regulations. The Software, Applications and related documentation are "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Software, Applications or related documentation by or on behalf of the United States Government is subject to restrictions as set forth in this Agreement.
It is the Companys policy to respond to clear notices of alleged copyright infringement. This section describes the information that should be present in these notices. The form of notice specified below is consistent with the form suggested by the United States Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov) but we will respond to notices of this form from other jurisdictions as well.
Regardless of whether Company may be liable for such infringement under local country law or United States law, Companys response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating Registered Users. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the owner of the affected content so that they may make a counter notification. We may also document notices of alleged infringement on which we act.
Infringement Notification. To file a notice of infringement with us, you must provide a written communication (by fax or regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights. To expedite our ability to process your request, please use the following format (including section numbers):
Counter Notification. The administrator of an affected site or the provider of affected content may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. When we receive a counter notification, we may reinstate the material in question.
To file a counter notification with us, you must provide a written communication (by fax or regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. To expedite our ability to process your counter notification, please use the following format (including section numbers):
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If you have any questions, complaints, or comments regarding these TOS, or have other questions or suggestions about our Service, Software or Applications, please contact us via e-mail at firstname.lastname@example.org.