Terms Of Service
PLEASE READ THIS AGREEMENT CAREFULLY!
BY PRESSING AGREE, CUSTOMER (THE INDIVIDUAL, ENTITY, OR ENTITY THAT RECEIVES THE BENEFIT OF OR USES THESE SERVICES) IS AGREEING TO BE BOUND BY THE AGREEMENT BELOW.
IF CUSTOMER DOES NOT AGREE, CLICK DISAGREE. IF CUSTOMER CLICKS DISAGREE, CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.
This agreement is between InfoStreet, Inc., a California corporation (InfoStreet), and customer (Customer). It is effective on the date Customer agrees to it.
1. Web-based Software as a service. This agreement provides Customer access to a web-based software service as ordered by Customer. InfoStreet will provide its SkyOne (Formerly SkyDesktop) functionality through the web under the terms below (SkyOne). This agreement contemplates one or more orders for SkyOne, which orders are governed by the terms of this agreement.
2. USE OF SERVICES.
a. Trial Version. If Customer has registered for a trial use of SkyOne, Customer may access SkyOne for the limited time period specified on the trial site time period (unless extended by InfoStreet). SkyOne is provided AS IS, with no warranty during this time period. All Customer data will be deleted after the trial period, unless Customer converts its account to a paid account.
b. Free Version. If Customer has registered for a no-charge use of SkyOne, Customer may access SkyOne until it is cancelled by InfoStreet (without cause) upon notice sent via email (using its email address in SkyOne), or by the Customer. SkyOne is provided AS IS, with no warranty. All Customer information will be deleted after the no-charge period ends, unless Customer converts its account to a paid account.
c. Customer Responsibilities.Customer
is solely responsible for Customer Data (defined below) and all activity in its account in SkyOne,
must use commercially reasonable efforts to prevent unauthorized access to its account, and notify InfoStreet promptly of any such unauthorized access, and
may use SkyOne only in accordance with the SkyOne technical documentation and applicable law.
d. Restrictions:Customer may not
sell, resell, rent or lease SkyOne,
use SkyOne to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights,
interfere with or disrupt the integrity or performance of SkyOne,
attempt to gain unauthorized access to the SkyOne or its related systems or networks, or
attempt to access SkyOne by any means other than through the interface that is provided by SkyOne. Customer may not attempt to access SkyOne through any automated means (including use of scripts, crawlers, or similar technologies).
e. Support. InfoStreet’s online technical support services are included with SkyOne, as more detailed at http://www.InfoStreet.com. Additional, phone-based support can be purchased. The fee structure for these premium support plans can be viewed at http://www.InfoStreet.com.
3. Payment Terms.Customer must pay all fees as specified on the order, but if not specified then upon receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, and other similar taxes (except for taxes based on the net income of InfoStreet).
a. Credit Card Payments. If a credit card account is being used, InfoStreet may obtain preapproval for an amount up to the amount of the order. Customer must pay for SkyOne online, and InfoStreet may charge its credit card for all purchases and for any additional amounts (including any taxes and late fees, as applicable) owed to InfoStreet. CUSTOMER IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING INFOSTREET WITH A VALID CREDIT CARD FOR PAYMENT WHICH THEY ARE AUTHORIZED TO USE. If Customer wants to designate a different credit card or use a bank account or if there is a change in Customers credit card status, Customer must change its information online in the account within SkyOne. If a Customer credit card changes or expires, or is revoked, disputed or not valid for any other reason, InfoStreet may suspend, terminate, or both (without liability) Customers use of SkyOne upon 5 days notice sent to Customer via email (using its email address in SkyOne). InfoStreet reserves the right to charge a $25 administrative fee on amounts that are not processed by Customer’s credit card company.
b. Bank Account (eCheck) Payments. If a bank account is being used, InfoStreet may obtain preapproval for an amount up to the amount of the order. Customer must pay for SkyOne online, and InfoStreet may debit the bank account for all purchases and for any additional amounts (including any taxes and late fees, as applicable) owed to InfoStreet. CUSTOMER IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING INFOSTREET WITH A VALID BANK ACCOUNT FOR PAYMENT WHICH THEY ARE AUTHORIZED TO USE. If Customer wants to designate a different bank account or use a credit card, or if there is a change in Customers bank account status, Customer must change its information online in the account within SkyOne. If a Customer bank account is disputed or not valid for any other reason, InfoStreet may suspend, terminate, or both (without liability) Customers use of SkyOne upon 5 days notice sent to Customer via email (using its email address in SkyOne).
4. WARRANTY DISCLAIMER. INFOSTREET DISCLAIMS ALL WARRANTIES, AS SKYONE IS PROVIDED AS IS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. SKYONE MAY BE INTERRUPTED OR CONTAIN AN ERROR. INFOSTREET DOES NOT GUARANTY THAT SKYONE CANNOT BE COMPROMISED.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all confidential information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). InfoStreet’s Confidential Information includes without limitation SkyOne, and Licensed Software and Documentation, and each of their parts and pricing (including without limitation the SkyOne user interface design and layout).
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions.Confidential Information excludes information that:
is or becomes generally known to the public without breach of any obligation owed to Discloser,
was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser,
is received from a third party without breach of any obligation owed to Discloser, or
was independently developed by the Recipient without use or access to the Confidential Information.
d. Disclosure Required by Law. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
6. Proprietary Rights.
a. Reservation of Rights by SkyOne. The software, workflow processes, user interface, designs, know-how, Licensed Software and Documentation (defined below), and other technologies provided by InfoStreet as part of SkyOne are the proprietary property of InfoStreet or its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with InfoStreet. InfoStreet reserves all rights unless expressly granted in this agreement.
b. Customer Restrictions.Customer may not:
Reverse engineer SkyOne or the Licensed Software and Documentation;
Remove or modify any proprietary marking or restrictive legends in SkyOne or Licensed Software and Documentation; or
Access SkyOne or use the Licensed Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
d. Licensed Software and Documentation. Any software provided by InfoStreet as part of SkyOne, and SkyOne documentation, sample data, marketing materials, training material and other material provided through SkyOne or by InfoStreet (Licensed Software and Documentation) are licensed to Customer as follows: InfoStreet grants Customer a non-exclusive, license during the Term, to such Licensed Software and Documentation, for use solely with SkyOne.
7. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
a. Exclusion of Certain Damages. INFOSTREET IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA, RECORDS OR INFORMATION, and lost profits, revenue or cost savings).
b. Limitation of Liability. infostreet’s total liability for damages ARISING OUT OF OR RELATED TO This Agreement (WHETHER IN CONTRACT, TORT OR OTHERWISE) does not exceed the actual amount paid by CUSTOMER UNDER THIS AGREEMENT within the 12 MONTHS PRECEDING the event which gave rise to the claim.
8. TERM, Termination, RETURN OF DATA AND Suspension of SkyOne.
a. Term. This agreement continues for the duration specified on the order and auto-renews for the duration as specified in the original order, unless cancelled by either party upon notice prior to the renewal date (Term). When Customer does not renew SkyOne, there are no partial refunds for any pre-paid amounts.
b. Mutual Termination for Material Breach.If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
Actions upon Termination for Material Breach.
Upon any termination as provided in 8(b) above by Customer, InfoStreet must refund any prepaid and unused fees covering the remainder of the Term.
Upon any termination as provided in 8(b) above by InfoStreet, Customer must pay any unpaid fees covering the remainder of the Term. SkyOne will also be terminated.
c. Return or Destroy SkyOne Property Upon Termination. Upon termination or expiration of this agreement for any reason, Customer must pay InfoStreet for any amounts owed, and destroy or return all property of InfoStreet. Customer will confirm its compliance with this destruction or return requirement in writing upon request of InfoStreet.
d. Suspension of SkyOne for Violations of Law. InfoStreet may immediately suspend SkyOne and remove applicable Customer Information if it in good faith believes that, as part of using SkyOne, Customer may have violated a law. InfoStreet may try to contact Customer in advance, but it is not required to do so.
9. Governing Law AND FORUM.
a. California Law and Location This agreement is governed by the laws of the State of California, without regard to conflicts of law principles. Any dispute arising out of or related to this agreement (Claim) must be exclusively brought in the federal or state courts for the Los Angeles County, California, and Customer submits to the personal jurisdiction and venue in that state. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys fees and costs from the other party.
b. Optional Arbitration for Claims Less than $7,000. Notwithstanding the foregoing, for any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $7,000, the party requesting relief may chose to resolve the dispute in a more cost effective manner through binding non-appearance-based arbitration. If a party elects arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules:
the arbitration will be conducted by telephone, online and be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration;
the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.
10. CUSTOMER Indemnity. If a third-party claims against InfoStreet arising out of or relating to Customers use of SkyOne, or that any part of the Customer Data infringes or violates that party’s patent, copyright or other right, or other claim, Customer must indemnify, defend and hold harmless InfoStreet against that claim and pay all expenses, costs, damages (including without limitation attorneys fees and costs) incurred or suffered by InfoStreet.
11. MISCELLANEOUS OTHER TERMS.
a. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
b. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. No modification or waiver of any term of this agreement is effective unless both parties sign it.
c. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.
d. Independent Contractors. The parties are independent contractors with respect to each other.
e. Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
f. No Additional Terms. InfoStreet rejects additional or conflicting terms of any Customer form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms. Any terms that by their nature survive termination or expiration of this agreement, will survive.
i. CISG Not Apply. The Convention on Contracts for the International Sale of Goods does not apply.
j. Force Majeure. Neither party is liable for fore majeure events.