(b) PLEASE REVIEW THE TOU CAREFULLY. THE TOU REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOU (EACH, A “CLAIM”), AND YOU AGREE THAT ANY CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 19 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
(c) BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE ENTERING INTO THE TOU ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TOU, IN WHICH CASE THE TERM “YOU” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE TOU, YOU MAY NOT ACCESS OR USE THE SERVICE, AND YOU MUST UNINSTALL ANY COMPONENTS OF THE SERVICE FROM ANY DEVICE WITHIN YOUR CUSTODY OR CONTROL.
(d) You represent and warrant that you are: (i) over 18 years of age or the age of majority in your jurisdiction, whichever is greater; (ii) of legal age to form a binding contract; and (iii) not a person barred from accessing or using the Service under the laws of your country of residence or any other applicable jurisdiction.
(a) If you are accessing or using the Service through your affiliation with a company or other organization that has entered into an agreement with Curatia for access to and use of the Service (each such agreement, an “ Enterprise Agreement”), then your access to and use of the Service may be further subject to the terms and conditions of the applicable Enterprise Agreement.
(c) You acknowledge and agree that: (i) by accessing or using the Service, Curatia may receive certain information about you, including personal information, and Curatia may collect, use, disclose, store and process such information in accordance with the TOU, including any Additional Terms; and (ii) technical processing and transmission of data, including Your Content (defined in Section 6(a)), associated with the Service may require transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
(a) Curatia grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (i) access and view pages within the Service, including Curatia newsletters; and (ii) access and use any online software, application and other similar component within the Service, to the extent that the Service provides you with access to or use of such component, but only in the form made accessible by Curatia within the Service.
(b) All rights granted to you under the TOU are subject to your compliance with the TOU, including all Additional Terms, in all material respects and may only be exercised by you for your personal, non-commercial use or internal business purposes.
Except as expressly agreed to by Curatia in any Additional Terms, Curatia will have no obligation to provide you with any support for the Service, although Curatia may choose to provide such support in its sole discretion.
(a) You may browse and access some parts of the Service without registering, but some features may not be accessible unless you register. In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Curatia reasonably suspects that you have done so, Curatia may suspend or terminate your account. Curatia may further update Registration Data to make it true, accurate, current and complete as directed by you or based upon information made available to Curatia.
(b) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use, and regardless of your knowledge of such use. Upon becoming aware of any unauthorized access to or use of your account or password or any other similar breach of security, you shall promptly notify Curatia.
(c) Except with respect to Subscriptions (defined in Section 9), if your account remains inactive for three months or longer, Curatia reserves the right to suspend or terminate your account, with or without notice to you, and delete Your Content.
(a) All information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not Curatia, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not Curatia, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”).
(b) Curatia has no obligation to pre-screen Content, although Curatia reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, Curatia shall have the right to remove any Content that violates the TOU.
(c) Curatia has no obligation to back up Your Content, and you are solely responsible for backing up Your Content. You acknowledge and agree that you may not have access to Your Content through Curatia or the Service following the termination of the TOU.
(d) You represent and warrant that: (i) you have all necessary rights and authority to grant the rights set forth in the TOU with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of another party.
(a) Curatia does not claim ownership of Your Content. However, you hereby grant Curatia and its service providers a worldwide, royalty-free, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to (i) provide access to the Service to you and other users; and (ii) monitor and improve the Service. To the extent you have made any portion of Your Content accessible to others through the Service, Curatia may continue to make that portion of Your Content accessible to others through the Service even after you have deleted your account or that portion of Your Content from your account.
(b) As between Curatia and you, Curatia owns all rights, title and interest (including all intellectual property rights) in the Service (except with respect to Your Content), and all improvements, enhancements or modifications thereto, including all Content and other materials therein. The Service is protected by U.S. and international copyright, patent, trademark, trade secret and other intellectual property laws and treaties. Curatia reserves all rights not expressly granted to you.
(c) You acknowledge and agree that Curatia may collect or generate Aggregate Data (defined below) in connection with providing you with access to and use of the Service, and you hereby grant Curatia and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data (in any form and any medium, whether now known or later developed) for any lawful purpose. “ Aggregate Data” means Your Content that has been aggregated or de-identified in a manner that does not reveal any personal information about you or your organization and cannot reasonably be used identify you or your organization as the source of such data.
In connection with your access to or use of the Service, you shall not (subject to the limited rights expressly granted to you in Section 3):
(a) upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) any applicable law or contractual or fiduciary obligation prohibits you from making available (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any copyright, patent, trademark, trade secret or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate;
(b) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute (including forwarding any Curatia newsletters), make, have made, assign, pledge, transfer or otherwise grant rights to the Service (except for Your Content);
(c) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service;
(d) remove or obscure any proprietary notice that appears within the Service;
(e) access the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any other products or services offered by Curatia;
(f) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose;
(g) impersonate any person or entity, including Curatia personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(h) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(i) act in a manner that negatively affects the ability of other users to access or use the Service;
(j) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
(k) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(l) frame or utilize any framing technique to enclose any Content;
(m) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service, or substantially download, reproduce or archive any portion of the Service;
(n) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including your user account and password; or
(o) violate any applicable local, state, provincial, federal or international law or regulation.
You are solely responsible for any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for your access to and use of the Service. Some features of the Service are free to use, but fees apply if you sign up for access to any part of the Service that requires payment of a fee (each, a “Subscription”). All fees for Subscriptions, including applicable payment terms, will be as set forth in the Service. If you sign up for a Subscription, your Subscription will automatically renew at the conclusion of the then-current term unless you turn off auto-renewal before the conclusion of the then-current term. Ceasing to access or use the Service will not automatically cancel your Subscription or turn off auto-renewal. You must cancel your Subscription or turn off auto-renewal to end recurring charges. Canceling a Subscription or turning off auto-renewal will not entitle you to a refund of any fees already paid, and previously charged fees will not be pro-rated based upon cancellation.
If you elect to provide or make available to Curatia any suggestions, comments, ideas, improvements or other feedback relating to the Service (“ Suggestions”), you hereby grant Curatia and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make or have made Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services within or through the Service, including payment for and delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third party. Curatia shall not be liable for any damage or loss of any kind arising from or relating to any such dealings.
Subject to any Additional Terms, Curatia reserves the right to modify, suspend or discontinue the Service or any product or service to which it connects, with or without notice, and Curatia shall not be liable to you or to any third party for any such modification, suspension or discontinuance. Curatia may, in its sole discretion, from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service or related products or services (collectively, “ Updates”). Curatia may develop Updates that require installation by you before you continue to access or use the Service or related products or services.
You shall indemnify, defend and hold Curatia and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, the “Curatia Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, arising from or relating to: (a) Your Content; (b) your violation of the TOU, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Service.
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CURATIA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
(b) THE CURATIA PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
(c) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED FOR TRADING PURPOSES. NONE OF THE CONTENT CONSTITUTES A SOLICITATION, OFFER, OPINION, ENDORSEMENT OR RECOMMENDATION BY CURATIA TO BUY OR SELL ANY SECURITY OR TO PROVIDE LEGAL, TAX, ACCOUNTING OR INVESTMENT ADVICE OR SERVICES REGARDING THE PROFITABILITY OR SUITABILITY OF ANY SECURITY OR INVESTMENT. YOU ARE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION.
(a) THE CURATIA PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM OR RELATING TO ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE CURATIA PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE CURATIA PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF $50 OR THE AMOUNT PAID BY YOU TO CURATIA FOR ACCESS TO OR USE OF THE SERVICE WITHIN 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
(b) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(a) Subject to the Additional Terms, if you violate the TOU, all rights granted to you under the TOU will terminate immediately, with or without notice to you, provided that, with respect to any Subscription, all rights granted to you under such Subscription will terminate in the event that you are in material breach of the TOU and fail to cure such breach within five days after Curatia gives you notice of such breach.
(b) If you are accessing or using the Service pursuant to an Enterprise Agreement, then any rights granted to you under the TOU terminate upon termination of the Enterprise Agreement for any reason.
(c) Upon termination of the TOU for any reason: (i) you must immediately cease using the Service; (ii) Curatia, in its sole discretion, may remove and discard Your Content and delete your user account; (iii) any provision that, by its terms, is intended to survive the termination of the TOU will survive such termination; and (iv) all rights granted to you under the TOU will immediately terminate, but all other provisions will survive termination.
The TOU will be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws, and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOU.
(a) ALL CLAIMS (DEFINED IN SECTION 1(b)) WILL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THE TOU AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, such hearing will be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH: (i) AGREE THAT ALL CLAIMS (DEFINED IN SECTION 1) WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS; AND (ii) EXPRESSLY WAIVE ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 19 REQUIRING BINDING ARBITRATION WILL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM WILL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, you and Curatia may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 19.
(e) If Curatia implements any material change to this Section 19, such change will not apply to any Claim for which you provided written notice to Curatia before the implementation of the change
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOU with respect to such items, and any access to or use of the Service by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
You agree that, except for the Curatia Parties and as otherwise expressly provided in the TOU, there are no third-party beneficiaries to the TOU.
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Curatia’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Curatia’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
PO Box 158
New York, NY 10024
Phone: (917) 780-2485
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
The TOU (together with the Additional Terms) constitutes the entire agreement between you and Curatia concerning your access to and use of the Service. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Curatia with respect to such subject matter. In the event of any conflict between or among the TOU and any Additional Terms, the terms and conditions of each will take precedence and govern in the following order of priority: Enterprise Agreement (if any), the TOU, and any other Additional Terms. The TOU may not be amended by you except in a writing executed by you and an authorized representative of Curatia. For the purposes of the TOU, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under the TOU without the prior written consent of Curatia. The failure of Curatia to exercise or enforce any right or provision of the TOU will not constitute a waiver of such right or provision. If any provision of the TOU is held to be invalid or unenforceable under applicable law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOU. Any prevention of or delay in performance by Curatia hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control will excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.