THE SERVICE Your Information. As used in this agreement, the term “Your Information” means any information you provide to us in the registration process and in using the Service. You are solely responsible for Your Information. Your Information will not: (a) be
false, inaccurate, misleading or fraudulent; Strictly to let us use the information you supply us with, so that we are not violating any rights you might have in that information, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to exercise the copyright, publicity, and database rights (but no other rights) you have in Your Information, in any media now existing or later invented. Privacy. We will only use Your Information according to our Privacy Policy, the provisions of which are expressly incorporated into and made a part of this agreement. By accepting this agreement, you are also accepting the terms of our Privacy Policy. Acknowledgement. BY USING THE SERVICE, (1) YOU SIGNIFY YOUR UNAMBIGUOUS AND INFORMED CONSENT TO TRANSFER YOUR INFORMATION TO SERVERS IN THE UNITED STATES OF AMERICA, AND, IF YOU ARE LOCATED IN THE EUROPEAN UNION, YOU ACKNOWLEDGE THAT CERTAIN EUROPEAN UNION MEMBER STATES CONSIDER THE LAWS OF THE UNITED STATES OF AMERICA TO BE “WITHOUT ADEQUATE DATA PROTECTIONS” AND (2) YOU EXPRESSLY PERMIT WINDSTAR TECHNOLOGIES, INC. TO TRANSFER SUCH INFORMATION TO THE THIRD PARTIES THAT YOU DESIGNAGE IN USING THE SERVICE. Restricted Activities. In using the Service, you may not (a) engage in any activity that would create liability for us or cause us to lose the services of our ISP's or other suppliers in whole or in part, (b) attempt to interfere with the proper working of the Service or any related activities, or (c) take any action that imposes a disproportionately large or unreasonable load on our infrastructure. If you use, or attempt to use, the Service for any purpose other than its intended purpose, including without limitation modifying, hacking, tampering or otherwise corrupting the functionality or security of the Service, we will terminate your account and you will be subject to damages and other penalties, including criminal prosecution if available. You will comply with all applicable domestic and international laws, statutes, ordinances, regulations, contracts and applicable licenses regarding your use of the Service. PROPRIETARY MATERIALS The Service contains copyrighted material, trademarks, services marks and other proprietary information, which may include without limitation text, software, photographs, video, graphics, images, music and sound (collectively “Proprietary Material”). You agree not to copy, reproduce, modify, publish, transmit, participate in the transfer or sale of, create derivative works of, or in any way exploit, in whole or in part, any Proprietary Material, except that you may copy Proprietary Material for your personal, non-commercial use. LINKED SITES Windstar is not affiliated with sites that may be linked to the Service (“Linked Sites”). Windstar has no control over, and is not responsible for, the content on any Linked Site. The Linked Sites are for user convenience only and you access them at your own risk. DISCLAIMER OF WARRANTIES YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE PRECEDING PARAGRAPH, WE DO NOT WARRANT OR GUARANTEE THAT (1) THE SERVICE IS COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (2) THE SERVICE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (3) THE FUNCTIONS OR SERVICES WE PERFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. Some jurisdictions do not allow the disclaimer of implied warranties, so some or all of the above disclaimers may not apply to you. LIMITATION OF LIABILITY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE FOR ANY DAMAGES (REGARDLESS OF THEIR LEGAL BASIS, INCLUDING NEGLIGENCE, TORT, BREACH OF CONTRACT, OR ANY OTHER CAUSE OF ACTION), INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY THE SERVICE, INCLUDING WITHOUT LIMITATION AS A RESULT OF 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 RECORDS OR DATA. IN THE EVENT THAT ANY OR ALL OF THE PRECEDING PARAGRAPH IS HELD UNENFORCEABLE, YOU AGREE THAT OUR LIABILITY, IF ANY, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) US $1,000. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. GENERAL TERMS AND CONDITIONS Termination. Without limiting other remedies, we may without liability immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your service and refuse to provide the Service to you if: (a) you breach this agreement or any of the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability to any person or entity. If you are a paying member and your Service is terminated as a result of your improper conduct or actions, you will not be entitled to receive a refund of any paid fees. Indemnity. You agree to indemnify and hold us and (as applicable) our officers, directors, agents, and employees, and those of our parent, subsidiaries, and affiliates, harmless from any claim or demand, and any damages, costs, or expenses arising in connection with such claim or demand, including reasonable attorneys’ fees, made by any other party due to or arising out of your breach of this agreement or the documents it incorporates by reference, or your violation of any law or the rights of another party. Legal Compliance. You will comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Service. No Agency. You and Windstar are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this agreement. Arbitration. Any legal controversy or legal claim arising out of or relating to this agreement or the Service, excluding legal action taken by us to collect our fees and/or recover damages for, or obtain an injunction relating to, the Windstar site operations, intellectual property, and the Service, will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Boston, Massachusetts, USA, unless you and we mutually agree otherwise, and judgment on the arbitration award may be entered in any court having jurisdiction. Either you or we may seek any interim or preliminary relief from a court of competent jurisdiction in Boston, Massachusetts, USA necessary to protect rights or property pending the completion of arbitration, and you hereby agree to the personal jurisdiction of such court. Should either party file an action contrary to this provision, the other party may recover attorneys fees and costs up to US $1,000. Changes and Cancellation. Windstar may at any time, without notice or liability, change or eliminate any of the Services or the content contained therein, or restrict use of any portion of the Services, including limiting the time of its availability, the amount of use permitted, or the persons who are permitted to use it. Windstar may at any time, in its sole discretion, cancel or suspend the Services for any reason, including without limitation the existence of viruses, bugs, or other causes beyond Windstar’s control that corrupt the administration, security or proper function of the Services. Reservation of Rights. Windstar reserves the right to refuse access to the Services or membership for any reason. Amendment. We may amend this agreement at any time by posting the amended terms on the Service, which will become effective immediately when posted. By continuing to use the Service after we post any amendment, you agree to be bound by the amendment. This agreement may not be otherwise amended. Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language shall be for accommodation only and shall not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, shall be in the English language. General. This agreement will be governed in all respects by the laws of the Commonwealth of Massachusetts, USA, as such laws are applied to agreements entered into and to be performed entirely within Massachusetts between Massachusetts residents, without regard to its choice of law provisions. Any cause of action against us must be brought within one (1) year after the cause of action arose or the cause of action is permanently barred. If any provision of this agreement is held to be invalid or unenforceable, the provision will be struck and the remaining provisions will be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This agreement sets forth the entire understanding and agreement between us with respect to the subject matter contained in this agreement. |
