PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY.
COMPANY ONLINE WEB SITE USE AGREEMENT
This Web Site Use Agreement (“Agreement”) is entered into by you, pursuant to your Use as defined herein, and the Days of ‘47 and any of its related entities (hereinafter referred to as “Company”). The Company Online Web Site daysof47.com is comprised of various web sites, web pages, tools, information, software, content, software, and features (collectively, “Company Web Site”) owned and operated by Company.
Section 1 – COMPANY WEB SITE USE
If you do not agree to the terms of this Agreement, you must immediately stop your use of the Company Web Site or any Company Products.
Section 2 – SCOPE OF COMPANY WEB SITE USE
Company makes the Company Web Site available to users at no charge. The features of the Company Web Site may include but are not limited to, access to email services (through COMPANY or other email providers), search capabilities, account management tools, connections to certain exterior content, and certain diagnostic tools for troubleshooting relating to Company’s Products. The Company Web Site is intended solely for your private and personal use on your computer and for attaining Company’s Products for the purpose of professional training and continuing education. Any other use or any attempt to use the Company Web Site for commercial or other purposes is strictly prohibited.
Section 3 – REGISTERED USERS
You agree that the information you provide during the Company Web Site registration is accurate and that you are 18 years of age or older.
Section 4 – NO WARRANTY
COMPANY (AND ITS THIRD PARTY SUPPLIERS AND LICENSORS) PROVIDE THE COMPANY WEB SITE ON AN “AS IS,” AS AVAILABLE, BASIS, WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION, OR THOSE WARRANTIES WHICH MAY ARISE BY COURSE OF DEALING, OR COURSE OF TRADE. ALSO, THERE IS NO WARRANTY OF LACK OF VIRUSES OR OTHER DISABLING CODE OR CONDITION, LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT. THE ENTIRE RISK ARISING OUT OF THE USE, QUALITY, ACCURACY, EFFORT, OR PERFORMANCE OF THE COMPANY WEB SITE IS WITH YOU. IN ADDITION, COMPANY DOES NOT WARRANT THE SECURITY OF THE COMPANY WEB SITE OR, INFORMATION, SOFTWARE, CONTENT, AND FEATURES AVAILABLE THROUGH IT WILL BE UNINTERRUPTED, ERROR-FREE, PROVIDED PROPERLY OR COMPLETELY, OR BE AVAILABLE 24 HOURS PER DAY, 7 DAYS PER WEEK. COMPANY IN ITS DISCRETION MAY PROVIDE SUPPORT FOR THE COMPANY WEB SITE.
Section 5 – LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY BE LIABLE TO ANY PARTY FOR (i) ANY SPECIAL, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) OR ANY OTHER DAMAGES ARISING IN ANY WAY FROM OR IN CONNECTION WITH THE AVAILABILITY, USE, RELIANCE ON, PERFORMANCE OF THE COMPANY WEB SITE, PROVISION OF OR FAILURE TO PROVIDE THE COMPANY WEB SITE, LOSS OF DATA, YOUR ACCESS OR INABILITY TO ACCESS OR USE THE COMPANY WEB SITE OR YOUR USE AND RELIANCE ON INFORMATION OR CONTENT AVAILABLE ON OR THROUGH THE COMPANY WEB SITE, INCLUDING VIRUSES ALLEGED TO HAVE BEEN OBTAINED, OR INVASION OF PRIVACY FROM OR THROUGH THE COMPANY WEB SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE; OR (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER DYSFUNCTION IN, OR DESTRUCTIVE PROPERTIES OF, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE COMPANY WEB SITE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES OR JURISDICTIONS, COMPANY’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Section 6 – RIGHT TO CHANGE, MODIFY OR TERMINATE COMPANY WEB SITE
Without prejudice to any other rights that Company may have, Company reserves the right and sole discretion to change, limit, terminate, modify at any time, temporarily or permanently cease to provide the Company Web Site or any part thereof to any user or group of users, without prior notice and for any reason or no reason. In the event you or Company terminate this Agreement, you must immediately stop using the Company Web Site.
Section 7 – CHANGES TO AGREEMENT
Section 8 – INTELLECTUAL PROPERTY RIGHTS
All title and intellectual property rights (including without limitation, copyrights, patents, trademarks and trade secrets) in and to the Company Web Site (including but not limited to, related software and including but not limited to any images, photographs, animations, video, audio, music, text and “applets,” incorporated into the software, and any copies of the software), are owned by Company and/or Company, its affiliates or suppliers. All title and intellectual property rights in and to the information and content which may be accessed through use of the Company Web Site are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement does not grant you any rights to use such content, nor does it grant any rights to the Company Web Site other than the right to use the Company Web Site according to the terms of the Agreement.
Section 9 – INDEMNIFICATION
You agree to defend, indemnify and hold harmless COMPANY and its officers, directors, employees, agents and suppliers from and against all liabilities, costs and expenses, including reasonable attorney’s fees, related to or arising from: (a) any violation of this Agreement by you (or any parties who use your computer, with or without your permission, to access the Company Web Site); (b) the use of the Company Web Site or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your computer to access the Company Web Site, with or without your permission); (c) negligent acts, errors, or omissions by you (or any parties who use your computer to access the Company Web Site, with or without your permission); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the gross negligence or willful misconduct of Company; or (e) claims for infringement of any intellectual property rights arising from the use of the Company Web Site or the Internet.
Section 10 – MANAGEMENT OF YOUR COMPUTER
You are solely responsible for obtaining, installing, and maintaining suitable equipment and software, including any necessary system or software upgrades, patches or other fixes, which are or may become necessary to access the Company Web Site. Minimum systems requirements may apply to the use of the Company Web Site and it is your responsibility to ensure your computer system complies with these requirements. You are responsible for management of your information, including but not limited to back-up and restoration of data, erasing data from disk space you control and changing data on your router. You are also responsible for development and maintenance of any security procedures you deem appropriate, such as logon security and encryption of data, user ID and password on your router and firewalls, to protect your information. Company is not responsible for back-up and restoration of your information or for any loss of or disablement of access to your information, including without limitation, email and address book information. In addition, you agree that information required by the Web Site software (including any personalization information) and other identifying information requested by Company or its portal supplier may be placed in our user directory.
Section 11 – LIMITATIONS ON USE
a. Control. The Internet is an international computer network of both government and non-government inter-operable packet switched data networks. The Internet is not owned, operated or managed by, or in any way affiliated with Company, and Company is not responsible for and has no control over the information or materials accessible via the Internet through use of the Company Web Site.
c. You agree that the reliability, availability and performance of resources accessed through the Internet or other services connected or linked to the Company Web Site are beyond Company’s control and are not in any way warranted or supported by Company. You agree that Company cannot and does not guarantee or warrant that files available for downloading through the Company Web Site will be free of viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information you transmit over the Internet. Company is not responsible for invalid destinations, transmission errors, or corruption, interception or security of your data.
d. You understand and agree that Company does not warrant the Company Web Site to be uninterrupted or error-free. You further understand and agree that Company has no control over third party networks or web sites that you may access in the course of your use of the Company Web Site, and that delays and disruptions of other network transmissions are completely beyond the control of Company.
e. You agree that Company assumes no responsibility for the accuracy, integrity, quality completeness, usefulness or value of any content, data, documents, graphics, images, information, advice, or opinion contained in any emails, message boards, chat rooms or community services, or in any other public services, and does not endorse any advice or opinion contained therein. Company does not monitor or control such services, although we reserve the right to do so. Company may take any action we deem appropriate, in our sole discretion, to maintain the high quality of our Company Web Site and to protect others and ourselves.
11. MISCELLANEOUS PROVISIONS
a. If any part of this document is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
b. By transmitting, uploading, posting or submitting any information or material using the Company Web Site, (excluding Personally Identifiable Information or financial information transmitted pursuant to the purchase of a Company Product), you (i) represent that such information is not confidential, secret or proprietary information belonging to someone else; and (ii) warrant that no other party has rights to the information and that your transmission, posting, uploading or submission of the information does not violate any copyright or other laws.
c. The Company Web Site contains third party links and it is provided by Company only as a convenience to its users. Any web sites linked to or from the Company Web Site are not necessarily reviewed, controlled, or examined by Company and Company is not responsible for the contents of any linked site or any link contained in a linked site. The inclusion of any linked sites or content from the Company Web Site does not imply endorsement of the linked site or content by Company. In no event shall Company be liable to anyone for any damage arising from or caused, directly or indirectly, by the creation or use of a third party’s web site, or the information or material accessed through such web sites.
d. The terms of this Agreement apply only to your use of the Company Web Site and do not apply to your use of any other Company product or service. The terms and conditions applicable to such other Company products or services shall apply to and govern your rights and obligations (and ours) with respect to your use of such other products or services.
e. You and Company agree that the substantive laws of the state of Utah, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AND COMPANY CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN SALT LAKE COUNTY, UTAH, FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE COMPANY WEB SITE. Except as otherwise required by law, including Utah laws relating to consumer transactions, any cause of action or claim you may have with respect to the Company Web Site must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
f. Use, duplication or disclosure by any Government entity is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is The Days of ’47, Inc., 185 South State St Ste 800 Salt Lake City, UT 84111.
h. This Agreement, including all Attachments hereto, which are fully incorporated into this Agreement, and also including all policies and notices incorporated into this Agreement by reference, constitutes the entire agreement between you and Company with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. You agree not to assign or otherwise transfer this Agreement in whole or in part; any attempt to do so shall be void. This Agreement may be revised by Company as set forth in Section 6, “Changes to Agreement”, above. Any terms varying from this Agreement in any written or electronic communication from you are void.