TERMS OF USE AGREEMENT
PLEASE READ THESE TERMS OF USE CAREFULLY BECAUSE THEY DESCRIBE YOUR RIGHTS AND RESPONSIBILITIES
This is the official Terms of Use Agreement ("Agreement") for
CompleteMarkets.com ("Site," "we," "us," or "our"), an Internet website
offered in cooperation or connection with INSOMIS CORP (“INSOMIS”).
This Agreement governs only the content, features, and activities
related to this Site and does not cover other websites for INSOMIS, any
subsidiaries and affiliates of INSOMIS (collectively, “Affiliates”), or
any other company, unless specifically stated.
This Site is offered and made available only to users 18 years of age or
older who reside in the United States of America, its territories and
possessions (“U.S.”) and certain features on this Site (including, but
not limited to, user registration and newsletter signups) may be subject
to heightened age and/or other eligibility requirements. If you are not
yet 18 years old or the required greater age for certain features, do
not reside in the U.S. and/or do not meet any other eligibility
requirements, please discontinue using the Site immediately or, if for
any reason, you do not agree with all of the terms and conditions
contained in this Agreement, please discontinue using the Site
immediately because by using or attempting to use the Site, you certify
that you are at least 18 years of age or other required greater age for
certain features and meet any other eligibility and residency
requirements of the Site.
These terms and conditions regarding your use of the Site constitute a
legally binding agreement between you and INSOMIS. In this Agreement,
the term "Site" includes all websites and web pages within the Site as
well as any equivalent, mirror, replacement, substitute or backup
websites and web pages that are associated with the Site. By using this
Site, you understand, acknowledge and agree that you will abide by the
terms of this Agreement and any additional terms that govern certain
products and services, which will be presented in conjunction with those
products and services ("Additional Terms"), including, but not limited
to, the User Content Agreement which governs your submission of User
Content as such term is defined therein. The Site may also provide
rules of participation ("Rules") for certain activities and services
including, but not limited to, contests and sweepstakes, award programs,
membership clubs, email, and dating services. The Site's Additional
Terms and the Privacy Policy and the Rules are hereby incorporated in
this Agreement by reference. To the extent that there is a conflict
between this Agreement and Additional Terms for the activity in which
you choose to participate, the Additional Terms shall govern. To the
extent that there is a conflict between this Agreement and the specific
Rules for the activity in which you choose to participate, the Rules
shall govern. This Agreement will remain in full force and effect as
long as you are a user of the Site and in the event of termination of
any membership, service or feature, you will still be bound by your
obligations under this Agreement, the Privacy Policy, any Additional
Terms or Rules, including any indemnifications, warranties and
limitations of liability.
Subscriptions; Charges on Your Credit Profile.
For any PRODUCT/SERVICE that you purchased using a credit card, the
SERVICE PROVIDER bills you through an online account (your "Credit
Profile") for use of the PRODUCT/SERVICE. You agree to pay the SERVICE
PROVIDER all charges at the prices you agreed to for any use of the
PRODUCT/SERVICE by you or other persons (including your agents) using
your Credit Profile, and you authorize the SERVICE PROVIDER to charge
your chosen payment provider (your "Payment Method") for the
PRODUCT/SERVICE. You agree to make payment using that selected Payment
Method. The SERVICE PROVIDER may correct any billing errors or mistakes
that it makes even if it has already requested or received payment. This
Section includes any agreements you made with the SERVICE PROVIDER on
the Website when becoming a Member/User or subscribing to the
PRODUCT/SERVICE. The terms of your payment will be based on your Payment
Method and may be determined by agreements between you and the
financial institution, credit card issuer or other provider of your
chosen Payment Method. If you initiate a chargeback or otherwise reverse
a payment made with your Payment Method, the SERVICE PROVIDER may in
its discretion terminate your account immediately. If the SERVICE
PROVIDER successfully disputes the reversal, and the reversed funds are
returned, you are not entitled to a refund or to have your account or
subscription reinstated. Your subscription will continue indefinitely
until cancelled by you. After your initial subscription commitment
period, and again after any subsequent subscription period, your
subscription will automatically continue for an additional equivalent
period, at the price you agreed to when subscribing. You agree that your
account will be subject to this automatic renewal feature. If you do
not wish your account to renew automatically, or if you want to change
or terminate your subscription, please log in and go to "Manage
Subscriptions" on the Website and follow the directions contained
therein. If you cancel your subscription, you may use your subscription
until the end of your then-current subscription term; your subscription
will not be renewed after your then-current term expires. However, you
won't be eligible for a prorated refund of any portion of the
subscription fee paid for the then-current subscription period. By
subscribing, you authorize the SERVICE PROVIDER to charge your Payment
Method now and again at the beginning of any subsequent subscription
period. You also authorize the SERVICE PROVIDER to charge you for any
sales or similar taxes that may be imposed on your subscription
payments. Upon the renewal of your subscription, if the SERVICE PROVIDER
does not receive payment from your Payment Method provider, you agree
to pay all amounts due on your Credit Profile upon demand and/or you
agree that the SERVICE PROVIDER may either terminate or suspend your
subscription and continue to attempt to charge your Payment Method
provider until payment is received (upon receipt of payment, your
account will be activated and for purposes of automatic renewal, your
new subscription commitment period will begin as of the day payment was
received). You must provide current, complete and accurate information
for your Credit Profile. You must promptly update all information to
keep your Credit Profile current, complete and accurate (such as a
change in billing address, card number or expiration date), and you must
promptly notify the SERVICE PROVIDER if your Payment Method is canceled
(including if you lose your card or it is stolen), or if you become
aware of a potential breach of security (such as an unauthorized
disclosure or use of your name or password). Changes to such information
can be made at "Account Settings" on the Website. If you fail to
provide the SERVICE PROVIDER any of the foregoing information, you agree
that you are responsible for fees accrued under your Credit Profile. In
addition, you authorize us to obtain updated or replacement expiration
dates and card numbers for you credit or debit card as provided by your
credit or debit card issuer.
The words "use" or "using" in this Agreement means any time an
individual (a "user"), directly or indirectly, with or without the aid
of a machine or device, does or attempts to access, interact with use,
display, view, print or copy from the Site, transmit, receive or
exchange data or communicate with the Site, or in any way utilizes,
benefits, takes advantage of or interacts with any function, service or
feature of the Site, for any purpose whatsoever. This Agreement does not
cover your rights or responsibilities with respect to third party
content or sites or any links that may direct your browser or your
connection to third party sites or pages. This is the entire and
exclusive Agreement between you and us regarding use of the Site and it
cannot be modified, except as specifically described below in Section 2.
1. REGISTRATION
We may require each user to have a unique user name and password
combination in order to access and use certain features or functions of
the Site and may also, from time to time, provide users with additional
codes or passwords necessary to access and use certain features or
functions of the Site. Please read our Privacy Policy, which describes
the personally identifiable information ("Personal Information") we
collect, use, disclose, manage and store. As part of the registration
process for the feature or function, you will choose a user name and
password (or we may assign an initial password which we will give you
the option to change). Your user name and password are personal to you
and you may not allow any others to use your user name or password under
any circumstances. We are not liable for any harm caused or related to
the theft or misappropriation of your user name or password, disclosure
of your user name or password, or your authorization of anyone else to
use your user name or password. You agree to immediately notify us if
you become aware of or believe there is or may have been any
unauthorized use of (or activity using) your user name or password or
any other need to deactivate your user name or password due to security
concerns.
2. MODIFICATIONS
We reserve the right, at any time and from time to time, for any reason
in our sole discretion, to change the terms of this Agreement. We will
post or display notices of material changes on the Site and/or e-mail
you or notify you upon login about these changes; the form of such
notice is at our discretion. Once we post them on the Site, these
changes become effective immediately and if you use the Site after they
become effective it will signify your agreement to be bound by the
changes. You should check back frequently and review the terms and
conditions of this Agreement, including, but not limited to, the User
Content Submission Agreement, other Additional Terms, Rules and Privacy
Policy, regularly so you are aware of the most current rights and
obligations that apply to you and the terms and conditions of your
agreement with us.
3. OWNERSHIP OF INTELLECTUAL PROPERTY
The contents of this Site, including all Site software, design, text,
images, photographs, illustrations, audio and video material, artwork,
graphic material, databases, proprietary information and all
copyrightable or otherwise legally protectable elements of the Site,
including, without limitation, the selection, sequence and 'look and
feel' and arrangement of items, and all trademarks, service marks and
trade names (individually and/or collectively, "Material"), are the
property of INSOMIS, and its Affiliates, and any of their respective
successors and assigns, and any of their respective licensors,
Advertisers (as defined below), suppliers, and operational service
providers and are legally protected, without limitation, under U.S.
Federal and State, as well as applicable foreign laws, regulations and
treaties. Unless the context clearly requires otherwise or we explicitly
say so in writing, the term "Site" includes "Material" as well. The
Site is to be used solely for your non-exclusive, non-assignable,
non-transferable and limited personal use and for no other purposes. You
must not alter, delete or conceal any copyright or other notices
contained on the Site, including notices on any Material you download,
transmit, display, print or reproduce from the Site. You shall not, nor
will you allow any third party (whether or not for your benefit) to
reproduce, modify, create derivative works from, display, perform,
publish, distribute, disseminate, broadcast or circulate to any third
party (including, without limitation, on or via a third party website),
or otherwise use, any Material without the express prior written consent
of INSOMIS or its owner if INSOMIS is not the owner. Any unauthorized
or prohibited use of any Material may subject you to civil liability,
criminal prosecution, or both, under applicable federal, state and local
laws. We require users to respect our copyrights, trademarks, and other
intellectual property rights. We likewise respect the intellectual
property of others. On notice, we will act expeditiously to remove
content on the Site that infringes the copyright rights of others and
will disable the access to the Site and its services of anyone who uses
them to repeatedly to infringe the intellectual property rights of
others.
We take protection of copyrights, both our own and others, very
seriously. We therefore employ multiple measures to prevent copyright
infringement over this Site and to promptly end any infringement that
might occur. If you believe that the Site contains elements that
infringe your copyrights in your work, please follow the procedures set
forth in our Copyright Compliance Policy.
4. ADVERTISING
From time to time, you may communicate with, receive communications
from, be re-directed to, interact with, or participate in or use the
services or obtain goods and services of or from, third parties
(collectively, the "Advertisers") such as our advertisers, sponsors, or
promotional partners. as a result of your use of the Site. All such
communication, interaction and participation is strictly and solely
between you and such Advertisers and we shall not be responsible or
liable to you in any way in connection with these activities or
transactions (including, without limitation, any representations,
warranties, covenants, contracts or other terms or conditions that may
exist between you and the Advertiser or any goods or services you may
purchase or obtain from any Advertiser).
5. RULES OF CONDUCT
Your use of the Site is subject to all applicable local, state, national
laws and regulations and, in some cases, international treaties. You
are solely responsible for all activities, acts and omissions that occur
in, from, through or under your user name or password. You shall not
use, allow, or enable others to use the Site, or knowingly condone use
of this Site by others, in any manner that is, attempts to, or is likely
to:
be libelous, defamatory, indecent, vulgar or obscene, pornographic,
sexually explicit or sexually suggestive, racially, culturally, or
ethnically offensive, harmful, harassing, intimidating, threatening,
hateful, objectionable, discriminatory, or abusive, or which may or may
appear to impersonate anyone else;
affect us adversely or reflect negatively on us, the Site, our goodwill,
name or reputation or cause duress, distress or discomfort to us or
anyone else, or discourage any person, firm or enterprise from using all
or any portion, features or functions of the Site, or from advertising,
linking or becoming a supplier to us in connection with the Site;
send or result in the transmission of junk e-mail, chain letters,
duplicative or unsolicited messages, or so-called "spamming" and
"phishing";
be used for commercial or business purposes, including, without
limitation, advertising, marketing or offering goods or services,
whether or not for financial or any other form of compensation or
through linking with any other website or web pages;
transmit, distribute or upload programs or material that contain
malicious code, such as viruses, time-bombs, cancelbots, worms, Trojan
horses, spyware, or other potentially harmful programs or other material
or information;
forge any TCP/IP packet header or part of the header information in any
email or newsgroup posting for any reason;
violate any laws, regulations (including, without limitation, laws
regarding the transmission of technical data or software exported from
the United States), judicial or governmental order or any treaties, or
violate or infringe upon any intellectual property rights, rights of
publicity or privacy or any other rights of ours or of any other person,
firm or enterprise; gain unauthorized access to the Site, other users'
accounts, names, passwords, personally identifiable information or other
computers, websites or pages, connected or linked to the Site or to use
the Site in any manner which violates or is inconsistent with the terms
and conditions of this Agreement;
modify, disrupt, impair, alter or interfere with the use, features,
functions, operation or maintenance of the Site or the rights of use and
enjoyment of the Site by any other person, firm or enterprise; or
collect, obtain, compile, gather, transmit, reproduce, delete, revise,
view or display any material or information, whether personally
identifiable or not, posted by or concerning any other person, firm or
enterprise, in connection with their or your use of the Site, unless you
have obtained the express, prior permission of such other person, firm
or enterprise to do so.
6. VIRAL FEATURES
There may be portions of our Site, content, functionality or features
(e.g, blog posts, articles, videos, digital streaming media player(s))
("Viral Features") that we make available to users for your personal
use. While we can obviously change how, to whom and to what extent we
make these Viral Features available at any time without any notice and
in our sole discretion, so long as they are available to you, whenever
you visit our Site or take advantage of any of these Viral Features
(whether you use these Viral Features on your own personal or customized
web pages, whether they are displayed or appear embedded or housed
within a web page or website of anyone else, whether a commercial
website or web page, an advertisement, promotional message or even a
personalized or customized web page of a friend or through any device
that can access any of these Viral Features) you agree not to download
any content made available as part of the Viral Features and acknowledge
that such content is available only for streaming viewing and, further,
that you are bound by the applicable provisions of this Agreement and
our Privacy Policy.
7. POSTINGS
Your comments, suggestions and information are important to us.
Portions of this Site may provide you and other users an opportunity to
participate in forum services, blogs, web communities and other message
and communication facilities (“Communities”) and may provide you with
the opportunity, through such Communities or otherwise, to submit, post,
display, transmit and/or exchange (a) information, ideas, opinions,
reviews, recommendations, testimonials, messages or other information
(“Post” or “Postings”) and (b) User Content (as defined in the User
Content Submission Agreement), your submission of which is also governed
by the terms and conditions therein, and considered a Posting for
purposes of this Agreement. You understand, acknowledge and agree that
such Postings are the sole responsibility of the person from which such
Postings originated. This means that you are solely and entirely
responsible for the consequences of all Postings that you upload, post,
email, transmit or otherwise make available via the Site. Postings do
not reflect the views of the Site, INSOMIS or the Affiliates. We
reserve the right to monitor, edit or screen any Postings. If we
determine, in our sole discretion and judgment, that any Posting does or
may violate any of the terms of this Agreement, we reserve the right,
at any time and without limiting any and all other rights we may have
under this Agreement, at law or in equity, to: (i) refuse to allow you
to Post; (ii) remove and delete Postings; (iii) revoke your right to use
the Site; and/or (iv) use any technological, legal, operational or
other means available to us to enforce the provisions of this Agreement,
including, without limitation, blocking specific IP addresses or
deactivating your registration on the Site.
If a Posting originates from you or your account, you hereby agree that:
(a) you specifically authorize the Site, INSOMIS and the Affiliates to
use such Posting in whole or in part, throughout the universe, in
perpetuity in or on any and all media, now known or hereafter devised,
and alone or together with or as part of other information, content
and/or material of any kind or nature; (b) you represent and warrant
that (i) the Posting is original to you and/or fully cleared for use as
contemplated herein, (ii) the Posting does and will not, in any way,
violate or breach any of the terms of this Agreement, (iii) the Posting
does not contain libelous, tortious, or otherwise unlawful information,
infringe or violate any copyright or other right, or contain any matter
the publication or sale of which will violate any federal or state
statute or regulation, (iv) the Posting is not obscene or in any other
manner unlawful, (v) the Posting shall not be injurious to the health of
any user, and (vi) we shall not be required to pay or incur any sums to
any person or entity as a result of our use or exploitation of the
Posting; and (c) if your Posting incorporates the name, logo, brand,
service or trademark, voice, likeness or image of any person, firm or
enterprise, you specifically represent and warrant that (i) you have the
right to grant the Site, INSOMIS and the Affiliates the right to use
all such Postings as described above, (ii) the Posting was produced in
compliance with all applicable laws and regulations and (iii) for any
User Content Posting that contains original videos, you will comply with
any applicable identification verification and record-keeping
requirements, and you will secure and maintain the requisite personal
information and identification documentation for all individuals who
appear in any such original videos, as may be required by law and/or
otherwise requested or required by us in connection with our corporate
compliance policies and practices, which includes (y) the individual’s
full legal name, current address, date of birth and (z) a legible
photocopy of a valid government-issued identification document (e.g., a
U.S. passport, state driver’s license or valid photo ID card) to verify
the individual’s identity. With the submission of each such Posting,
INSOMIS and the Affiliates reserve the right to request that you, and
upon such request you must, deliver a full and complete set of such
identification verification records to us, as well as a legible
photocopy of your valid driver’s license, passport or other acceptable
government-issued photo identification for our verification and
record-keeping purposes. In addition, you specifically acknowledge and
agree to abide by our policies regarding governmental certification
procedures relating to the foregoing identification verification and
record-keeping procedures and, if applicable, you will promptly comply
with any specific requests or directions we give you in connection with
Postings you submit that may be subject to these requirements.
You understand, acknowledge and agree that we have the right to delete,
re-format and/or change your Postings in any manner that we may
determine (although you will not be responsible for any such changes
made). The amount of storage space on the Site per user is limited. Some
Postings may not be processed due to space constraints or outbound
message limitations. You understand, acknowledge and agree that we
assume no responsibility for deletion of Postings or any failure to
store, receive or deliver Postings in a timely manner or any other
matter relating to Postings. Posting is for noncommercial purposes only
and you may not Post in any manner which does or is intended to promote
or generate revenue for any business enterprise or commercial activity.
If you believe that any content on the Site (including, without
limitation, Postings) violates any of the terms of this Agreement
(except for any notices covered by the Copyright Compliance Policy),
please email
[email protected] to send us a message about it
(please refer to our Copyright Compliance Policy for any notices covered
by the Copyright Compliance Policy). We cannot guarantee that we will
respond to your message and we reserve the right to take or refrain from
taking any or all steps available to us once we receive any such
message.
8. CONTESTS, SWEEPSTAKES, AUCTIONS AND PROMOTIONS
From time to time, INSOMIS’s, the Affiliates’ or the Site's operational
service providers, suppliers, and Advertisers, may conduct promotions on
or through the Site, including, without limitation, auctions, contests
and sweepstakes ("Promotions"). Each Promotion may have Additional Terms
and/or Rules which will be posted or otherwise made available to you
and, for purposes of each Promotion, will be deemed incorporated into
and form a part of this Agreement.
9. CERTAIN PRODUCTS AND SERVICES
a. RSS Feeds and Podcasts
The Site may provide RSS Feeds ("RSS Feeds") consisting of selected
text, audio, video, and photographic content ("Content") from the Site
that is provided over the Internet using an XML feed. Certain RSS Feeds
may be podcasts ("Podcasts") which may include as part of the Content
an associated audio, video and/or photographic file where the audio
and/or video file may be downloaded and played from a user's device or
transferred to a portable listening device. Certain software and
hardware is required for users to download and view and/or play Content
through RSS Feeds.
Content is protected by U.S. Federal and State laws, and applicable
foreign laws, regulations and treaties, and all rights in and to the
Content are reserved to INSOMIS or the content provider. Content is
available for personal, noncommercial use only and you may download,
copy and/or transfer to a Device or through a Device to another Device
the RSS Feeds and associated Content for your personal, non-commercial
use only. You shall not, nor will you allow any third party to,
reproduce, modify, create derivative works of, display, perform,
publish, distribute, disseminate, broadcast or circulate to any third
party, or otherwise use any Content except as expressly authorized in
this Section 9.
By your access to and use of RSS Feeds, you understand, acknowledge and
agree that the Site, INSOMIS and the Affiliates do not warrant that its
RSS Feeds will operate on all user equipment. Please see the "Disclaimer
and Limitations of Liability" section below for further details.
b. Mobile Applications
If INSOMIS offers products and services through applications available
on your wireless or other mobile Device (such as a mobile phone) (the
“Mobile Application Services”), these Mobile Application Services are
governed by the Additional Terms governing the applicable Mobile
Application Service. We do not charge for these Mobile Application
Services unless otherwise provided in the applicable Additional Terms.
However, your wireless carrier's standard messaging rates and other
messaging, data and other rates and charges will apply to certain Mobile
Application Services. You should check with your carrier to find out
what plans your carrier offers and how much the plans cost. In addition,
the use or availability of certain Mobile Application Services may be
prohibited or restricted by your wireless carrier, and not all Mobile
Application Services may work with all wireless carriers or devices.
Therefore, you should check with your wireless carrier to find out if
the Mobile Application Services are available for your wireless device,
and what restrictions, if any, may be applicable to your use of such
Mobile Application Services. If you change or deactivate your wireless
telephone number, you agree to promptly update your Mobile Application
Services account information to ensure that your messages are not sent
to the person that subsequently acquires your old number.
Under no circumstances will INSOMIS or any Affiliates be responsible for
any wireless email, text messaging or other charges incurred by a user
(or any person that has access to a user's wireless device, telephone
number, or email address) using any Mobile Application Services.
10. HYPERLINKS TO THIRD PARTY SITES
The appearance, availability, or your use of URLs or hyperlinks
referenced or included anywhere on the Site or any other form of link or
re-direction of your connection to, with or through the Site, does not
constitute an endorsement by, nor does it incur any obligation,
responsibility or liability on the part of, the Site, INSOMIS or any of
the Affiliates, any of their respective successors and assigns, and any
of their respective officers, directors, employees, agents,
representatives, licensors, Advertisers, suppliers, and operational
service providers. We do not verify, endorse or have any responsibility
for any such third party sites, their business practices (including
their privacy policies), or any goods or services associated with or
obtained in connection with any such site, whether the Site's, INSOMIS's
or any of the Affiliates’ logo or sponsorship identification is on the
third party site as part of a co-branding or promotional arrangement. If
any third party site obtains or collects Personal Information from you,
in no event shall we assume or have any responsibility or liability.
Please read our Privacy Policy, which describes how INSOMIS collects and
uses your Personal Information and other information and certain of our
relationships.
11. DEACTIVATION/TERMINATION OF YOUR REGISTRATION OR USE
We may terminate your use of and registration on the Site, at any time
and for any reason, with or without cause, without prior notice to you
and without any liability or further obligation of any kind whatsoever
to you or any other party.
12. DISCLAIMER AND LIMITATIONS OF LIABILITY
THIS SITE, AND ALL MATERIALS, PRODUCTS AND POSTINGS ARE MADE AVAILABLE
ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE
THE SITE WILL BE AVAILABLE FOR USE, OR THAT ALL PRODUCTS, FEATURES,
FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED.
Without limiting the foregoing, we are not responsible or liable for any
malicious code, delays, inaccuracies, errors, or omissions arising out
of your use of the Site. You understand, acknowledge and agree that you
are assuming the entire risk as to the quality, accuracy, performance,
timeliness, adequacy, completeness, correctness, authenticity, security
and validity of any and all features and functions of the Site,
including, without limitation, Postings and Materials associated with
your use of the Site.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW,
INSOMIS, ANY OF THE AFFILIATES, OR THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, REPRESENTATIVES, LICENSORS, OPERATIONAL SERVICE PROVIDERS,
ADVERTISERS, OR SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE,
OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE
OF THE SITE OR FROM THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO,
COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE
DAMAGES.
Notwithstanding any claim that a sole or exclusive remedy which is
provided in this Agreement may or does fail of its essential purpose,
you specifically acknowledge and agree that your sole and exclusive
remedy for any loss or damage shall be to have INSOMIS, upon written
notice from you to us, attempt to repair, correct or replace any
deficient goods or services under this Agreement and, if repair,
correction or replacement is not reasonably commercially practicable for
INSOMIS, to refund any monies actually paid by you for the Products
involved and to terminate and discontinue your use of the Site. You
further understand and acknowledge the capacity of the Site, in the
aggregate and for each user, is limited. Consequently some messages and
transmissions may not be processed in a timely fashion or at all, and
some features or functions may be restricted or delayed or become
completely inoperable. As a result, you acknowledge and agree that
INSOMIS assumes no liability, responsibility or obligation to transmit,
process, store, receive or deliver transactions or Postings or for any
failure or delay associated with any Postings and you are hereby
expressly advised not to rely upon the timeliness or performance of the
Site for any transactions or Postings. Some jurisdictions do not allow
for the exclusion of certain warranties or certain limitations on
damages and remedies; accordingly some of the exclusions and limitations
described in this Agreement may not apply to you.
13. INDEMNIFICATION
You agree to indemnify, defend and hold the Site, INSOMIS, and any of
the Affiliates, or any of their respective successors and assigns, and
any of their respective officers, directors, employees, agents,
representatives, licensors, Advertisers, suppliers, and operational
service providers harmless from and against any and all claims, actions,
losses, expenses, damages and costs (including reasonable attorneys'
fees), resulting from any breach or violation of this Agreement by you,
or public posting of your Postings.
INSOMIS reserves the right to assume, at its sole expense, the exclusive
defense and control of any such claim or action and all negotiations
for settlement or compromise, and you agree to fully cooperate with
INSOMIS in the defense of any such claim, action, settlement or
compromise negotiations, as requested by INSOMIS.
14. ADS AND MALWARE
We take great care and pride in creating this Site. We are always on the
lookout for technical glitches that effect how the Site works. When we
find them on our end, we will fix them. Unfortunately, your home
computer may cause some glitches that effect how you see our Site -- and
that is beyond our control.
Please note that we cannot be responsible for the effects of any third
party software including Malware on your computer system. Please make
sure to carefully read the Help or Customer Support areas of any
software download site. If you do discover any Malware on your system,
we also suggest you speak with a qualified computer technician.
15. PRIVACY
We respect your privacy and the use and protection of your Personal
Information. Please see our Privacy Policy for important information and
disclosures relating to the collection and use of your Personal
Information in connection with your use of the Site.
16. LAW THAT APPLIES TO THIS AGREEMENT; MISCELLANEOUS TERMS
This Agreement, together with any Additional Terms, Rules, our Privacy
Policy and any other regulations, procedures and policies which we refer
to and which are hereby incorporated by reference, contains the entire
understanding and agreement between you and the Site and supersedes any
and all prior or inconsistent understandings relating to the Site and
your use of the Site. This Agreement cannot be changed or terminated
orally. If any provision of this Agreement is held to be illegal,
invalid or unenforceable, this will not affect any other provisions and
the Agreement will be deemed amended to the extent necessary to make it
legal, valid and enforceable. Any provision which must survive in order
to allow us to enforce its meaning shall survive the termination of this
Agreement; however, no action arising out of this Agreement or your use
of the Site, regardless of form or the basis of the claim, may be
brought by you more than one (1) year after the cause of action has
arisen (or if multiple causes, from the date the first such cause
arose).
This Agreement and your use of the Site is governed by, construed and
enforced in accordance with the internal substantive laws of the State
of California (notwithstanding the State's conflict of laws provisions)
applicable to contracts made, executed and wholly performed in
California, and, for the purposes of any and all legal or equitable
actions, you specifically agree and submit to the exclusive jurisdiction
and venue of the State and Federal Courts situated in the State of
California and County of San Bernardino and agree you will not object to
such jurisdiction or venue on the grounds of lack of personal
jurisdiction, forum non conveniens or otherwise. To the extent it may be
applicable, you agree to opt out from and expressly exclude any
applicability of the Uniform Computer Information Transactions Act. IN
ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF
THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SITE OR WITH RESPECT
TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW
HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.