Terms of Service
AGREEMENT SHOCKOE™
APPLICATION SERVICE PROVIDER
IMPORTANT: PLEASE READ THESE TERMS CAREFULLY. THESE TERMS OF USE
(THIS"Agreement") GOVERN YOUR USE OF THIS SERVICE. BY USING THE SHOCKOE™ SERVICE AND CLICKING THE "I ACCEPT" BUTTON BELOW, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT USE THIS SHOCKOE™ SERVICE. This Agreement is a binding agreement between you and SHOCKOE.COM, LLC.
SHOCKOE.COM, LLC, a Virginia limited liability company and you ("you" or "Client") hereby agree that the following terms and conditions will apply to your access to the SHOCKOE™ Software s Network (SHOCKOE™) and your use of SHOCKOE™ (defined below).
1. INTRODUCTION AND SCOPE OF SERVICES. SHOCKOE.COM desires to provide to you, and you desire to obtain from SHOCKOE.COM, access to certain software functionality and other services. The SHOCKOE™ Software shall be provided through SHOCKOE.COM, as defined below. Client will access the functionality of SHOCKOE™ Software by using a web browser to access the SHOCKOE™.
2. DEFINITIONS
2.1 "Acceptable Use Policy" shall mean SHOCKOE.COM's policy on the use of its SHOCKOE™ service. The Acceptable Use Policy is set forth herein.
2.2 "Client Content" means any and all text, multimedia or images (graphics, audio and video) and data provided by Client and not originated by SHOCKOE™, which shall be subject to the terms and conditions set forth in this Agreement and Acceptable Use Policy.
2.3 "SHOCKOE.COM" shall mean SHOCKOE's Internet-based data center through which the SHOCKOE™ Software will be accessed by Client.
2.4 "SHOCKOE™ Software (s)" shall mean collectively access to the SHOCKOE.COM site, SHOCKOE™ Software and any other product or service provided by SHOCKOE.COM as set forth in this Agreement.
2.5 "SHOCKOE™ Software" shall mean the software functionality availed of, used or accessed by you through SHOCKOE.COM by using a web browser.
3. LICENSE
3.1 Rights Granted. In accordance with the terms of this Agreement, SHOCKOE.COM grants to Client a limited, nontransferable, non-exclusive license to use the SHOCKOE™ Software for the sole purpose of your job function with your employer. Notwithstanding anything to the contrary, Client may not use the SHOCKOE™ Software in a resale capacity, to process and/or analyze the data of a third party as a service bureau or on any hardware other than as set forth herein.
3.2 Ownership. All components of every SHOCKOE™ Software shall remain at all times the property of SHOCKOE.COM. Client agrees that SHOCKOE.COM owns all proprietary rights, title, and interest, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the SHOCKOE™ Software all related components, subroutines, code, materials, corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, to same, whether made by SHOCKOE.COM or any third party. Client has no ownership rights in the SHOCKOE™ Software . Rather, Client has solely a license to use the SHOCKOE™ Software in conjunction with the SHOCKOE™ Software s and pursuant to the terms of this Agreement, unless and until this Agreement is terminated pursuant hereto. The SHOCKOE™ Software is protected by copyright and other intellectual property laws of the United States and applicable international treaties, and contains trade secrets and other valuable proprietary information of SHOCKOE.COM. All rights not expressly granted to Client pursuant to this Agreement are expressly reserved by SHOCKOE.COM.
3.3 Effective Date. This Agreement shall be effective on the earlier of the date you begin to use the SHOCKOE.COM or the date you click 'I Accept' and shall remain in effect unless terminated in accordance with the provisions set forth in this Agreement.
3.4 Restrictions. Client agrees to use the SHOCKOE™ Software only for your job duties with your employer. Client agrees it and any affiliate shall not (i) permit any affiliate or third party to use the SHOCKOE™ Software , (ii) process or permit to be processed the data of any other party, (iii) use the SHOCKOE™ Software in the operation of a service bureau, (iv) alter, maintain, enhance or otherwise modify the SHOCKOE™ Software or any part thereof, or create derivative works based upon the SHOCKOE™ Software or any part thereof, (v) disassemble, decompile or reverse engineer the SHOCKOE™ Software , or (vi) copy or duplicate, or permit a third party to copy or duplicate, the SHOCKOE™ Software or any part thereof. Further, under no circumstances shall Client sell, license, publish, display, distribute, sublicense or otherwise transfer to a third party the SHOCKOE™ Software or any copy thereof, or any rights related thereto, in whole or in part.
3.5 Non-Transferable. Client agrees not to license, sell, transfer, lease or disclose the SHOCKOE™ Software to any third party.
4. NO WARRANTIES
SHOCKOE.COM EXPRESSLY DISCLAIMS ALL WARRAN TIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITA TION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SHOCKOE.COM EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY RELATING TO THE ACCURACY OF ANY SHOCKOE™ SOFTWARE AND THE INFORMATIONAL CONTENT PROVIDED BY, OR THROUGH THE USE OF, THE SHOCKOE™ SOFTWARE.
There is no warranty that ANY information PROVIDED THROUGH SHOCKOE.COM, SHOCKOE.COM'S efforts, or any SHOCKOE™ Software will fulfill any of CLIENT'S particular purposes or needs.
Neither nor any of its service providers, licensors, employees or agents warrant (a) that the functions contained in the SHOCKOE™ Software provided hereunder will meet Client's requirements or (b) that the operation of the SHOCKOE™ Software will be uninterrupted or error free or (c) that the SHOCKOE™ SOFTWARE will have the capacity to meet the demand during specific hours. SHOCKOE.COM will not be liable for any damages that Client may suffer arising out of use, or inability to use, the SHOCKOE™ SOFTWARE provided hereunder. SHOCKOE.COM will not be liable for unauthorized access to or alteration, theft or destruction of Client's data, CONTENT, files, programs, procedures or information through accident, fraudulent means or devices, or any other method.
ALL SHOCKOE™ SOFTWARE is provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user. There is no warranty against interference with your enjoyment of the SHOCKOE™ SOFTWARE or against infringement.
5. MAINTENANCE OF SHOCKOE.COM. SHOCKOE.COM shall set maintenance windows relating to the SHOCKOE.COM site and SHOCKOE™ Software in its sole discretion. During this time, SHOCKOE.COM reserves the right to take down server(s) in order to conduct routine maintenance checks to both software and hardware. SHOCKOE.COM will not be responsible for any damages or costs incurred by Client, if any, for maintenance down time.
6. LIMITATION OF LIABILITY
6.1 Limitation of Liability. SHOCKOE.COM'S liability for damages (regardless of the form of action, whether in contract, tort, or otherwise) shall in no event exceed the fee paid to SHOCKOE.COM BY YOUR EMPLOYER.
6.2 Further Limitation of Liability and Disclaimer of Damages. IN NO EVENT SHALL SHOCKOE.COM be liable for any special, incidental, indirect or consequential damages or for the loss of profit, revenue, or data, even if SHOCKOE.COM shall have been advised of the possibility of such potential loss or damages. Client further agrees that SHOCKOE.COM shall not be liable for any claim or demand against Client or SHOCKOE.COM by any third party.
6.3 Survival. The WARRANTY DISCLAIMERS, CLIENT INDEMNITY OBLIGATIONS, AND limitations of liability AS set forth HEREIN SHALL survive the NON-RENEWAL, EXPIRATION, OR termination of this Agreement, for whatever reason.
7. TERMINATION.
SHOCKOE.COM may terminate this Agreement if you breach any provision of this Agreement. See section 9.13 for Cancellation procedures and terms.
8. ACCEPTABLE USE OF POLICY
8.1 Introduction. This Section defines the Acceptable Use Policy ("Policy") relating to SHOCKOE™ Software provided through SHOCKOE.COM. This Policy will ensure the integrity, security, reliability and privacy of SHOCKOE.COM, systems, products, services, server hosting facilities and data contained within same. Client is responsible for continual compliance with this Policy.
8.2 Shockoe.com Security. Client is prohibited from violating, or attempting to violate, the security of SHOCKOE.COM. Any violations may result in criminal and civil liabilities to the Client. SHOCKOE.COM will investigate any alleged violations and will cooperate with law enforcement agencies if a criminal violation is suspected. Examples of violations of the security of SHOCKOE™ include, without limitation, the following:
- Accessing data not intended for such Client
- Logging into a server or account which the Client is not authorized to access
- Attempting to probe, scan or test the vulnerability of a system
- Breaching security or authentication measures without proper authority
- Attempting to interfere with service to any user, host or network including, without limitation, via means of overloading, "flooding," "mailbombing," or "crashing"
- Taking any action in order to obtain services to which the Client is not entitled
8.3 Illegal Use. SHOCKOE™ may only be used for lawful purposes. For example, Client may not use SHOCKOE.COM to create, transmit, distribute, or store material or Client Content that:
- Violates a trademark, copyright, trade secret or other intellectual property rights of others
- Violates the privacy, publicity or other personal rights of others
- Impairs the privacy of communications
- Contains obscene, offensive or inappropriate content
- Constitutes pornography
- May be threatening, abusive or hateful
- Violates export control laws or regulations
- Encourages conduct that would constitute a criminal offense or give rise to civil liability
- Causes technical disturbances to SHOCKOE™, including, but not limited to, add-ware, spy-ware, introduction of viruses, worms or other destructive elements.
- Violates reasonable regulations of SHOCKOE™ or other service providers with respect to the network
- Assist or permit any persons in engaging in any of the activities described above.
- Involves deceptive on-line marketing.
If Client becomes aware of any such activities, Client is obligated to immediately notify SHOCKOE.COM and take all other appropriate actions to cause such activities to cease.
8.4 Unsolicited Communications ("SPAM"). Posting the same or similar unsolicited e-mail messages, bulk commercial advertising or informal announcements to one or more groups (known as "Spam") is prohibited. Spam is not only annoying to Internet users, it seriously affects the efficiency and cost-effectiveness of SHOCKOE™. These unsolicited messages can increase your costs by clogging SHOCKOE™, rendering your web site inaccessible and potentially leading to down time of your mission-critical Internet applications.
In addition, E-MAIL or other users may not:
- send or post e-mail messages which are excessive and/or intended to harass or annoy others
- continue to send e-mail to a recipient that has indicated that he/she does not wish to receive it
- send e-mail with forged TCP/IP packet header information
- intentionally omit, delete, forge or misrepresent transmission information, including headers, and return addresses information
- take any other actions intended to cloak the Client's identity or contact information
8.5 Client Content, Linked Content or Information. Client is responsible for all its content hosted by SHOCKOE.COM (Client Content). SHOCKOE.COM exercises no control over, and accepts no responsibility for, the content of the information passing through SHOCKOE™, including content provided on any third party websites linked to SHOCKOE™. Any website links are provided as Internet navigation tools for informational purposes only and not as an endorsement by SHOCKOE.COM of the contents of such web sites. SHOCKOE.COM does not adopt, nor warrant the accuracy of, the content of any linked website and undertakes no responsibility to update the content. Use of any information obtained via SHOCKOE™ is at Client's own risk. SHOCKOE.COM does not screen communications and is not responsible for screening or monitoring content used by Client.
8.6 Consequences of Unacceptable Use. SHOCKOE.COM reserves the right to suspend or terminate access to SHOCKOE™ software upon notice of a violation of this Policy. Indirect or attempted violations of this Policy, and actual or attempted violations by a third party on behalf of a Client, shall be considered violations of this Policy by such Client.
9. GENERAL PROVISIONS
9.1 Assignment. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by either party by operation of law or otherwise, and any such attempted assignment shall be void and of no effect without the advance written consent of the other party, such consent not to be unreasonably withheld or delayed; PROVIDED, HOWEVER, that such consent shall not be required if either party assigns this Agreement to a wholly owned subsidiary or in connection with a merger, acquisition, or sale of all or substantially all of its assets, unless the surviving entity is a competitor of SHOCKOE.COM.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its law on conflicts of law. The parties to this Agreement consent to the exclusive jurisdiction and venue of a court of competent subject matter jurisdiction within the Commonwealth of Virginia.
9.3 Severability. In the event that any term or provision of this Agreement is held invalid by a court of competent jurisdiction, such provision shall be restated to reflect, as nearly as possible, the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect.
9.4 Enforcement. Both parties agree to pay all reasonable costs and expenses the other party incurs in successfully enforcing this Agreement, including reasonable attorneys' fees.
9.5 Survival. The terms of this Agreement relating to ownership, confidentiality, warranty disclaimer, indemnification, liability limitation, and effect of termination, shall survive the non-renewal, expiration, or termination or expiration of this Agreement.
9.6 Acceptance Use Policy. Client agrees at all times to comply with the SHOCKOE.COM Acceptable Use Policy, which is included in this Agreement. Client agrees to indemnify and hold SHOCKOE.COM harmless from any damages, costs and expenses incurred by SHOCKOE™ caused by the breach of this provision.
9.7 Third Party Rights. The provisions of this Agreement are solely for the benefit of the parties hereto and not for the benefit of any Third Parties.
9.8 Entire Agreement. This Agreement contains the full understanding between the parties and supersedes all prior representations or agreements, whether oral or written, with respect to such matters. The Agreement may only be changed by a written document signed by both parties.
9.9 Applicability. If you have agreed to pay for this service through the submission of a credit card number to SHOCKOE.COM, LLC , this Section is applicable to you.
9.10 Price and Payment. You will pay all fees or charges to Your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable pursuant to a separate agreement executed by You and SHOCKOE.COM. You must provide SHOCKOE.COM with valid credit card information as a condition to signing up for the Application Services. You must also report and pay any applicable taxes to the appropriate governmental agency.
9.11 Monthly Terms. A valid credit card is required for you to continue using the SHOCKOE™ Service after the 30-day free trial period on a month-to-month basis. The free trial offer entitles new, registered users to a one-time free trial usage of the Services. The service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade accounts, or for months unused with an open account.
9.12 Modification to Fees and Services. SHOCKOE.COM reserves the right to modify, suspend, or discontinue the SHOCKOE™ Service at any time for any reason with or without notice. SHOCKOE.COM reserves the right to change Service fees upon 30 days notice from us. Such notice may be provided at any time by posting the changes to the SHOCKOE.COM (www.shockoe.com) or the Service itself.
9.13 Cancellation and Termination. You are solely responsible for the proper cancellation of your account. You may cancel your account at any time by clicking on the Manage tab and then Account details. The Company Account Details page has a simple "Close account permanently" link. An email or phone request to cancel your account is not considered cancellation. There will be no refund if you cancel the Service before the end of your current, paid-up month, and you will not be charged thereafter. There is no cancellation fee. Cancellation is immediate, and all of your Content will be immediately deleted from the Service upon cancellation. SHOCKOE.COM may at any time and for any reason terminate the Services, terminate this Agreement, or suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account although residual copies of information may remain in our system.
9.14 Non-Payment. If timely payment cannot be charged to Your credit card for any reason, SHOCKOE.COM, LLC reserves the right to either suspend or terminate Your access to the Application Services and account and terminate this Agreement.
9.15 Amendment. This Agreement may not be modified, altered, or amended except by written instrument duly executed by authorized representatives of both parties.
9.16 Injunctive Relief. Client acknowledges that its violation of the provisions relating to confidentiality, intellectual property and proprietary rights may cause damage to SHOCKOE™ which is unquantifiable but nonetheless real and irreparable. Accordingly, in the event SHOCKOE.COM has reasonable cause to believe Client has violated or will violate any such provision, SHOCKOE.COM will be entitled to injunctive relief from a court of competent jurisdiction restraining such violation. This right to injunctive relief shall be cumulative and shall not restrict or limit SHOCKOE.COM's ability to resort to any other remedy available under law or equity.
