(Effective: April 1, 2009)
For certain aspects of the Web Site, you may be asked to register an account. In the event you agree to register an account, you will receive a username and password upon providing registration information and successfully completing the registration process. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You agree to immediately notify Intuience in the event (a) your registration information changes, or (b) you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You also agree that you will provide truthful and accurate information during the registration process. Intuience may refuse to grant a particular username to you for any reason, including, without limitation, in the event Intuience determines that such username impersonates someone else, is protected by trademark or other proprietary right law or is vulgar or otherwise offensive.
You acknowledge that the Web Site contains information, software, photos, video, text, graphics, music, sounds or other material provided by Intuience or third parties (collectively, "Content") that are protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed.
The Content posted by users via the Web Site ("User Content") is the intellectual property of the specific users of the Web Site who post such User Content and their licensors, if any. Intuience does not claim any ownership rights in such User Content. By posting User Content via the Web Site, however, you hereby grant to Intuience a limited, transferable, nonexclusive, worldwide, perpetual, royalty-free license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense and create derivative works and compilations incorporating such User Content.
In the event you would like to remove your User Content from the Web Site, please contact Intuience at email@example.com. Please note however, that your User Content may not be completely removed or may otherwise still be available to others in the following circumstances: (a) your User Content has been incorporated into derivative works or compilations created by Intuience or other parties; (b) such User Content has been retained in Intuience.s data backup systems or for archival purposes; or (c) to the extent third parties have retained your User Content.
You may not use the Widgets in any manner that would constitute an endorsement (whether express or implied) by Intuience (including any of its parent, subsidiary or related companies) of your web site or any product, service or activity contained on your web site. You may not place the Widgets on any web site that includes content that is offensive, abusive, harassing, threatening, discriminatory, vulgar, pornographic or otherwise inappropriate as determined by Intuience in its sole discretion.
The Widgets may be used only with those platforms from which a functional link is made available that directs users to Content and other information as located on the Web Site. You may not use the Widgets in any manner that does not permit successful linking to, redirection to or delivery of the applicable Intuience web page. You may not insert any intermediate page, splash page or other content between the Widget link and the applicable Intuience web page. Intuience may use data capture, syndication analysis and other similar tools to track, extract, compile aggregate and analyze any data or information resulting from use of a Widget.
The Web Site may provide, or third parties may provide, links to other web sites or resources on the Internet. Because Intuience has no control over such web sites or resources, you acknowledge and agree that Intuience is not responsible for the availability of such external web sites or resources, and Intuience does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such web sites or resources. You further acknowledge and agree that Intuience shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any such Content, goods or services available on or through any such web site or resource.
In the event that you post any User Content via the Web Site, you hereby make the following additional representations and warranties to Noble: (1) you are owner of such User Content or otherwise have the right to grant Intuience the licenses granted pursuant to this Agreement; (2) you have secured any and all consents necessary to post the User Content and to grant the foregoing licenses; (3) the User Content does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such User Content does not contain any personally identifiable information about third parties in violation of such parties' rights; (4) the use of any User Content will not result in harm or personal injury to any third party; and (5) all factual information contained in the User Content is true and accurate.
Intuience uses reasonable efforts to maintain the Web Site, but Intuience is not responsible for any defects or failures associated with the Web Site, any part thereof, any User Content posted using the Web Site, or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. The Web Site may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions, (b) periodic maintenance procedures or repairs which Intuience may undertake from time to time, or (c) causes beyond the control of Intuience or which are not foreseeable by Noble. In addition, Intuience makes no guarantees as to the web sites and information located worldwide throughout the Internet that you may access as a result of your use of the Web Site, including as to the accuracy, content, or quality of any such sites and information.
Intuience is not a backup service for storing User Content, and Intuience shall have no liability regarding any loss of User Content. You are solely responsible for creating backups of any User Content you post using the Web Site.
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
THE WEB SITE, ANY CONTENT, ANY WIDGETS AND ANY PRODUCTS OR SERVICES PROVIDED VIA THE WEB SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND AT YOUR SOLE RISK. INTUIENCE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT.
WITHOUT LIMITATION, INTUIENCE MAKES NO WARRANTY THAT THE WEB SITE, ANY CONTENT, ANY WIDGETS OR ANY PRODUCTS OR SERVICES PROVIDED VIA THE WEB SITE WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION FOUND THEREON WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED THROUGH THE WEB SITE WILL MEET YOUR EXPECTATIONS.
ANY CONTENT, WIDGETS OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEB SITE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT INTUIENCE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, LOSS OF OR INJURY TO LIFE OR OTHER INTANGIBLE LOSSES (EVEN IF INTUIENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE WEB SITE, ANY CONTENT, WIDGETS OR ANY PRODUCTS OR SERVICES PURCHASED VIA THE WEB SITE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEB SITE OR OTHERWISE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; OR (D) ANY OTHER MATTER RELATING TO THE WEB SITE, ANY CONTENT, WIDGETS OR THE PURCHASE OF INTUIENCE.S PRODUCTS OR SERVICES. IN NO EVENT SHALL INTUIENCE.S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE WEB SITE, WIDGETS, OR ANY CONTENT, PURCHASING INTUIENCE.S PRODUCTS OR SERVICES OR ANY AMOUNT RETAINED BY INTUIENCE FOR PROVIDING THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless Noble, its officers, members, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorneys' fees and costs and expenses, arising out of or in any way connected with (a) your access to or use of the Web Site or any part thereof, (b) any User Content you post via the Web Site, (c) a breach or alleged breach by you of any of your representations, warranties, covenants or obligations under this Agreement, (d) infringement or misappropriation of any intellectual property or other rights or third parties by you, (e) any negligence or willful misconduct by you, (f) any other claim related to your performance under this Agreement, or (g) any services or products provided by Noble.
Term and Termination
Governing Law and Other Miscellaneous Terms
The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
You acknowledge and agree that any expenses that you incur in furtherance of this Agreement are voluntary in nature and are made with the knowledge that this Agreement may be terminated as provided herein. You shall not make a claim against Noble, and Intuience shall not be liable with respect to the recoupment of any expenditures or investment made by you in anticipation of the continuation of this Agreement beyond the term hereof.
The parties agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to Intuience which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Intuience has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Intuience may have for your breach of this Agreement.
If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting and construing this Agreement.
If the performance of any part of this Agreement by either party (other than payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, telecommunications failure or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.
Intuience makes no representation that Content or other material or information on the Web Site is appropriate to or available in locations outside of the United States. You may not use the Web Site or export Content in violation of United States export laws, regulations or restrictions. If you access the Web Site from outside of the United States, you are responsible for compliance with all applicable laws.
Copyright and Copyright Notices
Intuience respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Intuience's Copyright Agent the following information:
- an electronic or physical signature of the owner or person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Web Site sufficient to allow us to locate the allegedly infringing material;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Please contact Intuience's designated Copyright Agent to receive notifications of claimed infringement at: Copyright Agent, c/o Intuience, LLC, 2215 West Chesterfield Blvd., Springfield, MO 65807; email: firstname.lastname@example.org; fax: 417-875-5050. Copyright owners and agents acknowledge that failure to comply with all of the requirements of the foregoing may result in an invalidity of the DMCA notice.
Counter-Notice. If you believe that the User Content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the User Content, you may send a counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Greene County, Missouri, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Intuience may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the person providing such User Content, the removed User Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Intuience.s sole discretion.