iCharts, Inc. (referred to herein as either the “Company,” “we,” “us,” or “our”) would like to welcome you, as a user (referred to herein as either “you,” “your” or “yourself”) to our site, iCharts.net (the “Web Site”). THE WEBSITE IS OPEN TO YOU, SUBJECT TO YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF USE (THE “TERMS”) AS SET FORTH BELOW. You agree to abide by the Terms, so please read them carefully. If you do not accept the Terms stated here, please do not use our Web Site. We may revise these Terms, at our sole discretion, at any time by updating this posting. Such modifications shall become effective immediately upon the posting thereof. No changes to these Terms may be made except by a revised posting on this page. You must review the Terms on a regular basis to keep yourself apprised of any changes because they are legally binding on you. If you are dissatisfied with the modifications to the Terms, your only recourse is to immediately discontinue use of the Web Site. The Terms are effective as of September 1, 2008.
Use of the Web Site and Material
The contents of this Web Site, such as text, source code, graphics, images and other material (“Material”), are owned by the Company and its licensors and vendors, and are protected by United States and foreign intellectual property laws. Unauthorized use of the Material may violate copyright, trademark and other laws.
The Company authorizes you to view and download a single copy of the Material on the Web Site solely for your personal, non-commercial use, provided you retain all copyright and other proprietary notices contained in the original Material on any copy you make of the Material. You may not sell or modify the Material or reproduce, display, publicly perform, distribute, or otherwise use the Material in any way for any public or commercial purpose without the prior written consent of the Company. The use of the Material on any other web site or in a networked computer environment for any purpose is prohibited. You may not copy or adapt the HTML or other code (including such applicable images and flash-files) that the Company uses to generate its pages. Such code is also protected by the Company’s copyright. You may not, without the prior written permission of the Company, use any computer code, data mining software, “robot,” “bot,” “spider,” “scraper” or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any of the pages, data or content found on the Web Site or accessed through the Web Site. In the event you download software from the Web Site, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to you by the Company or its licensors. The Company does not transfer title to the Software to you. You own the medium on which the Software is recorded, but the Company and its licensors retain full and complete title to the Software, and all intellectual property rights therein. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. Any use of the Software may be subject to an accompanying end user software license agreement. Any charts or similar work product or material produced by You from using the Web Site will belong to You subject to these Terms and Conditions of Use. You have the sole responsibility of protecting any and all intellectual property rights associated with such charts or similar work product or material produced by You; provided however that the company reserves the right to post such charts or similar materials produced by you anywhere on the web site at its sole discretion.
Acceptable Site Use
General Rules: You may not use the Web Site in order to transmit, distribute, store or destroy Material (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others without the prior written consent of such owner, or (c) that is defamatory, obscene, threatening, abusive, hateful, harassing, or embarrassing to another user or any other person or entity, (d) distributing or otherwise publishing, without the Company’s prior written approval, any material containing any solicitation of funds, promotion, advertising, or solicitation for goods or services, (e) soliciting other users of the Web Site to join or become members of any commercial online service; (e) deleting or revising any material posted by any other person or entity; (f) posting advertisements or solicitations of business without the Company’s prior written approval; (g) post chain letters or pyramid schemes; or (i) impersonate another person or entity.
Security Rules: You are prohibited from violating or attempting to violate the security of the Web Site and from using the Web Site to violate the security of other web sites by any method, including, without limitation, (a) accessing data not intended for you or logging into a server or account which you are not authorized to access, (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization, (c) attempting to interfere with service to any user of the Web Site, host or network, including, without limitation, via means of submitting a virus to the Web Site, overloading, “flooding”, “spamming”, “mailbombing” or “crashing”, (d) sending unsolicited e-mail, including promotions and/or advertising of products or services, or (e) forging any Company packet header or any part of the header information in any e-mail or newsgroup posting. Violations of system or network security may result in civil and/or criminal liability. The Company may investigate violations of these Terms and may involve and cooperate with law enforcement authorities in prosecuting users of the Web Site who are involved in such violations.
Registration and Password
You are responsible for maintaining the confidentiality of your information and password. You are responsible for all uses of your registration, whether or not authorized by you, including such registration to third parties. You agree to immediately notify the Company of any unauthorized use of your registration or password.
Links to Other Sites
The Web Site may contain links to third party web sites. These links are provided solely as a convenience to you and not as an endorsement by the Company of the contents on such third-party web sites. The Company is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party sites. Moreover, the Company is not responsible for damage caused by any viruses or malicious code encountered by you when accessing third party websites. If you decide to access linked third-party sites, you do so at you own risk.
The Company cannot ensure that you will be satisfied with any products or services that you purchase from a third-party site that links to or from the Company, since these sites are owned and operated by independent retailers. The Company does not endorse any of the merchandise, nor has the Company taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party sites. The Company does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to such sites. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third parties.
Fees and Services
Joining the Web Site is free; however, the Company reserves the right to charge fees for using certain services and a copy of our Fee Schedule for such services will be available on our Web Site. Changes to our Fees Schedule are effective after we provide you with at least fourteen days’ notice by posting the changes on the Web Site. We may choose to temporarily change the fees for our services for promotional events or new services, and such changes are effective when we post the temporary promotional event or new service on the Web Site. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with the Web Site in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. This includes charging other payment methods on file with us, retaining collection agencies and legal counsel.
You agree to submit any claim related to the Terms, Web Site or Materials to arbitration through JAMS in San Jose, California (“JAMS”). JAMS and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Limitation of the Company’s Liability
The Web Site or Material may contain inaccuracies or typographical errors. The Company makes no representations about the accuracy, truthfulness, reliability, completeness, or timeliness of the Web Site or the Material or endorse any opinions expressed by users. The use of the Web Site and the Material is at your own risk. We reserve the right, at our discretion, to modify, add, or remove portions of the Web Site at anytime without notice. You acknowledge and agree that you are solely responsible for the form, content, accuracy and communications of any material placed by you on the Web Site and the protection of any and all intellectual property related to your charts or similar work product or material produced by you. The Company has no obligation to screen communications in advance and is not responsible for screening or monitoring material posted by users, if any. If notified of communications that allegedly do not conform to these Terms, the Company may investigate that allegation and determine in good faith and its sole discretion whether to remove or request the removal of the communication. The Company has no liability or responsibility to users for performance or non-performance of such activities. The Company reserves the right (i) to expel users and prevent their further access to the Web Site for violating these Terms or the law; and (ii) to remove communications that are abusive, illegal, disruptive or which otherwise do not conform to the provisions of these Terms. You agree that you will not hold the Company responsible for other users’ actions or inactions, including their postings. Notwithstanding anything herein, the Company’s liability to you or to any third party is limited to $100.
THE COMPANY DOES NOT WARRANT THAT THE WEB SITE WILL OPERATE ERROR-FREE OR THAT THE WEB SITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL CODE. IF YOUR USE OF THE WEB SITE OR THE MATERIAL RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THE COMPANY IS NOT RESPONSIBLE FOR THOSE COSTS. THE WEB SITE AND MATERIAL ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.
Disclaimer of Consequential Damages
IN NO EVENT WILL THE COMPANY, ITS SUPPLIERS, OR ANY THIRD PARTIES MENTIONED ON THE WEB SITE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE WEB SITE OR THE MATERIAL, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If you have a dispute with one or more users, you release the Company (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
You agree to defend, indemnify, and hold harmless the Company, its officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your use of the Web Site (including Software), your breach of the Terms or your violation of any rights of another relating to the Terms.
The Company makes no claims that the Website or Materials may be lawfully viewed or downloaded outside of the United States. Access to the Website or Materials may not be legal by certain persons or in certain countries. If you access the Web Site or Materials from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. The Terms is governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Jurisdiction of any claims arising under these Terms will lie exclusively with the state or federal courts within San Jose, California. If any provision of the Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms, which shall remain in full force and effect. No waiver of any term of the Terms shall be deemed a further or continuing waiver of such term or any other term. Except as expressly provided in an end user software license or in a “Legal Notice” or other statement by the Company on the Web Site, these Terms constitute the entire agreement between you and the Company with respect to the use of Web Site and Materials. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Except as explicitly stated otherwise, legal notices shall be served on the Company’s national registered agent or to the email address you provide to the Company during the registration process. Notice shall be deemed given 24 hours after an email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.