HIERO.COM is the interactive online service operated by Hieroglyphics (Hieroweb Interactive) on the World Wide Web of the Internet, consisting of information services and content provided by Hieroweb Interactive. affiliates of Hieroweb Interactive. and other third parties.
(A) This Agreement, which incorporates by reference other provisions applicable to use of HIERO.COM., including, but not limited to, supplemental terms and conditions set forth in paragraph 13 hereof ("Supplemental Terms") governing the use of certain specific material contained in HIERO.COM., sets forth the terms and conditions that apply to use of HIERO.COM by each end user thereof ("End User"). By using HIERO.COM (other than to read this Agreement for the first time), End User agrees to comply with all of the terms and conditions hereof. The right to use HIERO.COM is personal to End User and is not transferable to any other person or entity. End User shall be responsible for protecting the confidentiality of End User's password(s), if any.
(B) Hieroweb Interactive shall have the right at any time to change or discontinue any aspect or feature of HIERO.COM, including, but not limited to, content, hours of availability, and equipment needed for access or use.
3. Changed Terms.
Hieroweb Interactive shall have the right at any time to change or modify the terms and conditions applicable to End User's use of HIERO.COM, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on HIERO.COM, or by electronic or conventional mail, or by any other means by which End User obtains notice thereof. Any use of HIERO.COM by End User after such notice shall be deemed to constitute acceptance by End User of such changes, modifications or additions.
End User shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of HIERO.COM and all charges related thereto.
5. End User Conduct.
(A) End User shall use HIERO.COM for lawful purposes only. End User shall not post or transmit through HIERO.COM any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without Hieroweb Interactive's express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by an End User that in Hieroweb Interactive's discretion restricts or inhibits any other End User from using or enjoying HIERO.COM will not be permitted. End User shall not use HIERO.COM to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users of HIERO.COM to become users of other on-line services competitive with Hieroweb Interactive
(B) HIERO.COM contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of HIERO.COM are copyrighted as a collective work under the United States copyright laws. Hieroweb Interactive owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. End User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. End User may download copyrighted material for End User's personal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of Hieroweb Interactive and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. End User acknowledges that it does not acquire any ownership rights by downloading copyrighted material.
(C) End User shall not upload, post or otherwise make available on HIERO.COM any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with End User. End User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of HIERO.COM Inc., End User automatically grants, or warrants that the owner of such material has expressly granted Hieroweb Interactive the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. End User also permits any other End User to access, view, store or reproduce the material for that End User's personal use. End User hereby grants Hieroweb Interactive the right to edit, copy, publish and distribute any material made available on HIERO.COM by End User.
(D) The foregoing provisions of Section 5 are for the benefit of Hieroweb Interactive its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
6. Disclaimer of Warranty; Limitation of Liability.
(A) END USER EXPRESSLY AGREES THAT USE OF HIERO.COM IS AT END USER'S SOLE RISK. NEITHER Hieroweb Interactive ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT HIERO.COM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF HIERO.COM, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH HIERO.COM.
(B) HIERO.COM IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
(C) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. END USER SPECIFICALLY ACKNOWLEDGES THAT Hieroweb Interactive IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH END USER.
(D) IN NO EVENT WILL Hieroweb Interactive OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING HIERO.COM OR THE HIERO.COM SOFTWARE, BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE HIERO.COM. END USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON HIERO.COM.
(E) IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER, Hieroweb Interactive NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN HIERO.COM, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE END USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES.
Hieroweb Interactive shall have the right, but not the obligation, to monitor the content of HIERO.COM., including chat rooms and forums, to determine compliance with this Agreement and any operating rules established by Hieroweb Interactive and to satisfy any law, regulation or authorized government request. Hieroweb Interactive shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on HIERO.COM. Without limiting the foregoing, Hieroweb Interactive shall have the right to remove any material that Hieroweb Interactive in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
End User agrees to defend, indemnify and hold harmless Hieroweb Interactive its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees, arising out of the use of HIERO.COM by End User.
Either Hieroweb Interactive or End User may terminate this Agreement at any time. Without limiting the foregoing, Hieroweb Interactive shall have the right to immediately terminate any passwords or accounts of End User in the event of any conduct by End User which Hieroweb Interactive in its sole discretion, considers to be unacceptable, or in the event of any breach by End User of this Agreement. The provisions of Sections 5(B), 5(C), 5(D), 6, 8, 10 and this Section 9 shall survive termination of this Agreement.
Hieroweb Interactive, HIERO.COM, Hieroglyphics, and each of their logos are trademarks of Hieroweb Interactive All rights reserved. All other trademarks appearing on HIERO.COM are the property of their respective owners.
11. Third Party Content.
Hieroweb Interactive is a distributor (and not a publisher) of content supplied by third parties and End Users. Accordingly, Hieroweb Interactive has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, End Users or any other user of HIERO.COM, are those of the respective author(s) or distributor(s) and not of Hieroweb Interactive Neither Hieroweb Interactive nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. (Refer to Section 6 above for the complete provisions governing limitation of liabilities and disclaimers of warranty.)
In many instances, the content available through HIERO.COM represents the opinions and judgments of the respective information provider, End User, or other user not under contract with Hieroweb Interactive. Hieroweb Interactive neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on HIERO.COM by anyone other than authorized Hieroweb Interactive employee spokespersons while acting in their official capacities. Under no circumstances will Hieroweb Interactive be liable for any loss or damage caused by an End User's reliance on information obtained through HIERO.COM. It is the responsibility of End User to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through HIERO.COM.
This Agreement and any operating rules for HIERO.COM established by Hieroweb Interactive constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of California, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
13. Supplemental Terms. By accepting this Agreement, End User hereby agrees and accepts the Required End User Terms and Conditions that appear as Exhibit A to this Agreement immediately following this Agreement.
EXHIBIT A TO HIERO.COM End User AGREEMENT
Required End User Terms and Conditions
(References to "Company" in this Schedule A are to Hieroweb Interactive)
For purposes of these Required End User Terms and Conditions, "Company" includes Company, any affiliated and subsidiary companies of the Company, any subcontractors and suppliers of the foregoing, and the directors, employees, officers, agents, subcontractors, and suppliers of all of them.
1. End User is solely responsible for the content of any transmissions using the Services, or any other use of the Services, by User or by any other person or entity End User permits to access the Services (each such person, also a "User"). End User agrees that it and any other User will not use the Services for illegal purposes, to violate the rights of any third party, or to interfere with or disturb other network users, network services, or network equipment. Violations of the foregoing may result in removal of violative communications and/or early termination of the Service. Disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and using the network to make unauthorized entry to any other machine accessible via the network.
2. End User shall limit access to and use of the Services to its employees (and, in the case of an End User that is a nonprofit educational institution, to employees and students), shall not authorize any person to use the Services other than for End User's business purposes, and shall not resell or otherwise generate income by providing access to the Services to any other User.
3. End User shall defend, indemnify, and hold harmless Company (as defined in Paragraph 1.A.) from and against all liabilities and costs (including reasonable attorneys' fees) arising from any and all claims by: (a) any person based upon the content of any transmissions by End User or any User using the Services or any other use of the Services by End User or any User: (b) Users in connection with the Services, regardless of the form of action, whether in contract, tort, warranty, or strict liability. However, End User shall have no obligation to indemnify and defend Company against claims for direct damages to real or tangible personal property, or for bodily injury or death, proximately caused by Company's negligence.
4. End User agrees to comply, and to cause any User to comply, with United States law with regard to the transmission of technical data that is exported from the United States using the Services.
5. COMPANY MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. COMPANY'S LIABILITY TO END USER ON ACCOUNT OF ANY ACTS OR OMMISSIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE GREATER OF (A) $25,OOO FOR EACH SITE PROVISIONED FOR SERVICES UNDER THIS AGREEMENT OR (B) THE AMOUNTS PAID BY END USER FOR SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM FOR DAMAGES, IN NO EVENT TO EXCEED AN AGGREGATE OF $50,000 IN THE CASE OF (A) OR (B). HOWEVER, NOTHING IN THIS SUBPARAGRAPH 1.G. LIMITS COMPANY'S LIABILITY FOR DIRECT DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY, OR FOR BODILY INJURY OR DEATH, PROXIMATELY CAUSED BY COMPANY'S NEGLIGENCE.
7. COMPANY SHALL NOT BE LIABLE FOR INDIRECT INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES FORHARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT COMPANY HAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE THAT USER MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE, THE SERVICES OR PRODUCTS PROVIDED HEREUNDER UNLESS SUCH DAMAGE IS CAUSED INTENTIONAL ACT OF COMPANY. COMPANY SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS BY THIRD PARTIES TO END USER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF USER'S NETWORK, SYSTEMS, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT, IN ANY INSTANCE INVOLVING PERFORMANCE OR NONPERFORMANCE BY COMPANY WITH RESPECT TO SERVICES OR PRODUCTS PROVIDED HEREUNDER, END USER'S SOLE REMEDY SHAL BE (A) IN THE CASE OF SERVICES, REFUND OF A PRO RATA PORTION OF THE PRICE PAID FOR SERVICES WHICH WERE NOT PROVIDED, OR (B) IN THE CASE OF PRODUCTS, REPAIR OR RETURN OF THE DEFECTIVE PRODUCT TO COMPANY FOR REFUND, AT THE OPTION OF COMPANY. EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT, IN THE CASE OF REFUND FOR LOST SERVICE GREATER THAN TWENTY-FOUR (24) HOURS.
8. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, AND SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.