(Effective as of February 14, 2013)
ABOUT THE SERVICE; RULES FOR CONDUCT AND USE OF THE SERVICE
Everpresent maintains this website to provide online access to information about Everpresent and the products and Services we provide. You need to be at least 18 years old and a resident of the United States to participate in the Service. The Services provided by us are subject to a separate customer agreement, a form of which can be found here: [http://www.everpresentonline.com/customeragreement] (the “Customer Agreement”). If you are a non-U.S. resident, you may access this Site solely at your own risk and are responsible for compliance with local laws and regulations, if applicable.
You are solely responsible for your use of and activity in relation to the Site and the Service. Your permission to use the Service and the Site is conditioned upon the following use and conduct restrictions. You agree that you will not under any circumstances:
- post or submit any content that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
- create a false identity or impersonate any person, including without limitation, identities falsely indicating that you are a Everpresent official or representative, message board moderator, guide, or another user;
- use the Service for any unlawful purpose or for the promotion of illegal activities;
- distribute or submit unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation;
- attempt to, or harass, abuse or harm another person;
- provide false or inaccurate information to Everpresent;
- interfere or attempt to interfere with the proper functioning of the Site or Service;
- make any automated use of the Site or Service, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
- copy, modify or distribute rights from the Site or Service or Everpresent’s copyrights and trademarks;
- submit content or materials that are subject to intellectual property protection, including without limitation, copyright, trademark or patent rights, or otherwise subject to third party proprietary rights, including without limitation, privacy and publicity rights, unless you are the owner of such rights or have permission from the owner of such rights to post said content or materials and to grant us all of the license rights necessary to transmit or maintain such content and materials on or through the Site;
- bypass any robot exclusion headers or other measures we take to restrict access to the Site or the Service or use any software, technology, or device to scrape, spider, or crawl the Site or harvest or manipulate data; or
- publish, submit or link to malicious content intended to damage or disrupt the browser, computer or systems of Everpresent or of any other person or entity.
You acknowledge that people participating in public or semi-public spaces on the Site, including any blog or message board we may make available (collectively “Forums”) occasionally post content or material, or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, illegal or deceptive. We neither endorse nor are responsible for such submissions or statements, or for any opinion, advice, information or other utterance made or displayed on the Site, including in the Forums, by any third person. The opinions expressed in the Forums reflect solely the opinion(s) of the participants of the Forums and do not necessarily reflect the opinion(s) of Everpresent. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in submissions or other content posted by our users or for any results obtained from the use of any such statements or information. Under no circumstances will we or our affiliates, agents, suppliers or other users be liable for any loss or damage caused by your reliance on any content or material submitted to us or on any information or materials obtained through the Site.
INTELLECTUAL PROPERTY; LICENSE GRANT
NOTICE AND TAKE DOWN PROCEDURES; COPYRIGHT AGENT
If you believe any material or content accessible on, from, or through the Site (including the Forums) or the Service infringes your copyright, you may request removal of that content (or access thereto) from the Site (including the Forums) and the Service by contacting our copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) e-mail address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
Our agent for copyright issues relating to the Site and the Service is as follows: Erica Koenig, Latham & Watkins LLP, 1000 Winter Street, Suite 3700, Waltham, MA 02451, phone: 781-434-6609, fax: 781-434-6601, Erica.Koenig@lw.com.
THE SERVICE AND THE SITE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, EVERPRESENT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE, THE SITE, OR ANY INFORMATION PROVIDED BY EVERPRESENT THROUGH THE SITE OR THE SERVICE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, EVERPRESENT MAKES NO WARRANTY OR REPRESENTATION THAT (A) ACCESS TO OR OPERATION OF THE SITE OR SERVICE WILL MEET YOUR REQUIREMENTS, (B) ACCESS TO OR OPERATION OF THE SITE OR SERVICE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE BASIS, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES OFFERED THROUGH THE SITE WILL BE ACCURATE OR RELIABLE OR (D) THE QUALITY OF ANY PRODUCT, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITE OR SERVICES WILL MEET YOUR EXPECTATIONS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE. EVERPRESENT SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT, MATERIALS OR INFORMATION. Everpresent does not guarantee the quality, safety or legality of the products, information or services provided through the Site and the Service.
LIMITATION OF DAMAGES
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EVERPRESENT, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE OR DISPLAY OF ANY USER CONTENT YOU POST OR SUBMIT TO EVERPRESENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE OR THE SITE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH EVERPRESENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EVERPRESENT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THIS LIMITATION ON LIABILITY APPLIES TO, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY DISABLING DEVICE OR VIRUSES WHICH MAY INFECT YOUR EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, BODILY INJURY, PROPERTY DAMAGE, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS OR ANY FORCE MAJEURE.
If you are interested in obtaining the Services, you will be required to execute the Customer Agreement, a form of which can be found here: [http://www.everpresentonline.com/customeragreement]. In addition, please see the following section of the Site http://www.everpresentonline.com/contact/ for instructions on how to contact us to learn more about the Services and how to submit materials.
Communications made through the Site’s e-mail and messaging system (including by messages submitted to us at [http://www.everpresentonline.com/contact/]) will not constitute legal notice to Everpresent or any of its officers, employees, agents or representatives in any situation where notice to Everpresent is required by contract or any law or regulation.
You agree to comply at all times with all laws, rules and regulations applicable to your use of the Service and the Site. Everpresent controls this Site from within the United States. You may not access, download, use or export the Site in violation of U.S. export laws or regulations or in violation of any other applicable laws or regulations.
Your right to use the Site is personal to you. You agree not to reproduce, duplicate, copy, sell or resell the Site, without the express written consent of Everpresent.