Effective Date: February 01, 2018
Date of Most Recent Revision: February 01, 2018
This Website (defined below) is provided by Exosphere, Inc. (referred to hereinafter as “Exosphere” or “we” (including objective “us” and possessive “our”)). These “Terms and Conditions of Website Use” (“Agreement”) constitute the Agreement between you, the end user (“User,” or “you,” including possessive “your,”), and Exosphere in regard to your use of the Website, regardless of the manner in which you access or use the Website. Under this Agreement, the term “Website” means the website and all webpages located by the ExosphereSecurity.com Internet domain address and all features, applications, content (including all text, graphics, photographs, and video), and downloads that are operated by Exosphere on this Website, and that are available through this Website, and that interact with or link to this Agreement.
If you want to use this Website, you must carefully read this Agreement, because it constitutes a written contract between you and Exosphere and it affects your legal rights and obligations.
Each time you access and/or use the Website, you agree to be bound by and comply with all of the terms and conditions of this Agreement. Therefore, do not use the Website if you do not agree to all of the terms of this Agreement. Also, please note that Exosphere reserves the right to modify, change, amend, or supplement the terms and conditions of this Agreement at any time without advance notice to the users of the Website. Therefore, we recommend that you review this Agreement from time to time to determine if changes have been made to this Agreement.
If you are under thirteen years of age, you may not use any of the features on this Website which require user registration. If you are over the age of thirteen but under the age of eighteen, your parent or guardian may be liable for some or all of your activities on the Website. Because your parent or guardian may bear this liability, and because Exosphere supports parental awareness of your activities, including knowledge of the websites that you visit, you must make your parent or guardian aware that you are intending to use the Website, and you must obtain your parent’s or guardian’s consent to your use.
A. Content. The Website contains, or may contain, a variety of materials and other items relating to Exosphere and its products and services, and similar items from our licensors, network members, and other third parties. All content on this Website, including, but not limited to, all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Website, and the compilation, assembly, and arrangement of the materials of the Website and any and all copyrightable material (including source and object code), trademarks, logos, trade names, service marks, company names, and trade identities of various parties, including those owned by Exosphere and those owned by third parties and licensed to Exosphere for use on the Website (collectively, “Trademarks”), and other forms of intellectual property are defined collectively as “Content,” which term includes all of the foregoing.
B. Ownership. The Website (including any past, present, and future versions) and the Content are either owned by Exosphere or controlled by Exosphere through licenses granted to Exosphere by its licensors. All right, title, and interest in and to the Content available via the Website is the property of Exosphere or of our licensors, and is protected by U.S. federal copyright, trademark, patent, and trade secrets laws and by other federal and state intellectual property, and unfair competition laws. In addition to Exosphere’s copyright ownership of the Content, Exosphere owns a copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Website. “Intellectual Property Rights,” as used in this Agreement, means any and all rights belonging to Exosphere and existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, in any intellectual property, which includes, but is not limited to, patentable inventions, ideas, and processes, trade secrets, trademarks, trade names, copyrightable works, and any confidential information. As between you and Exosphere, Exosphere retains all its respective titles, interests, and ownership in the Website and the Content, and you understand and acknowledge that neither you nor any other User acquires any ownership in any Intellectual Property Rights regarding the Website or the Content under this Agreement.
C. Limited License Granted to You. Subject to your strict compliance with this Agreement, Exosphere grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license (the “Limited License”) to do the following:
(1) download (for temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in any form, other than as made available to access and use via a standard web browser to enable display) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, an “Internet Access Device”) for your personal, non-commercial use only; and
(2) use certain Content that we may make available on the Website, which Content is defined hereinafter as “Exosphere Licensed Elements,” but your use of the Exosphere Licensed Elements must be restricted to only such purposes as may be explicitly stated at the time that the Exosphere Licensed Elements are made available on the Website.
The foregoing Limited License does not give you any ownership of, or any other intellectual property interest in, any Content, and Exosphere reserves the right to suspend or terminate, at any time and for any reason, your Limited License without any advance notice to you, and without any liability. This Agreement includes only narrow, limited grants of rights to Content and to use and access the Website. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Exosphere. Any unauthorized use of any Content or the Website for any purpose is strictly prohibited.
D. Rights of Others. In using the Website, you must respect the rights of others. Your unauthorized use of Content may violate rights owned by Exosphere or its licensors, and/or may violate copyright, trademark, privacy, publicity, communications, and other laws. If you make unauthorized use of Content owned by Exosphere or its licensors or of materials owned by a third party, your use may result in personal liability for you, as well as potential criminal liability.
E. Third-Party Websites. The Website may provide links to other websites operated by third parties who are not related to, affiliated with, or endorsed by Exosphere. Because Exosphere has no control over such third-party websites, you understand and acknowledge that Exosphere is not responsible for the availability of such websites and bears no responsibility or liability whatsoever for any content, advertising, services, products, or other materials on or available from such websites. Accordingly, you acknowledge and agree that Exosphere shall have no responsibility or liability, directly or indirectly, for any damage or loss suffered by you and caused directly or indirectly by such websites. Further, you understand, acknowledge, and agree that this Agreement does not apply to third-party websites and that your use of such websites is subject to the terms and conditions and policies of the owner or owners of such third-party websites.
2. NON-PERSONALLY IDENTIFIABLE DATA.
You understand, agree, and acknowledge that Exosphere may aggregate non-personally identifiable information and demographic data regarding Users, including you, and their behavior on the Website and their activities in regard to the Website and the Content (“Data”). Exosphere may use and retain this Data for any purpose, including but not limited to improving or modifying the Website, without any compensation or royalty owed to you or to any other User.
3. USER CONDUCT ON THE WEBSITE.
You hereby understand, acknowledge, and agree that you will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Content or the Website in whole or in part; and/or remove any notices of copyright, any watermarking, or any other proprietary notices or language referring to Exosphere’s ownership of the Content and the Website; and/or copy, reproduce, publish, distribute, or redistribute any of the Content, in whole or in part, to any person who is not an authorized User of the Website; and/or attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the Content, the Website, any rights granted under this Agreement, or any intellectual property rights owned by Exosphere to any other person or entity; and/or provide any other person or entity access to the Website by means of your username and/or your password; and/or attempt to lend, lease, license, sublicense, transfer, assign, sell, or resell your username(s) and password(s) to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the Website or the Content, or otherwise discover or duplicate any technology, routines, computer software, algorithms, methods or underlying ideas or design or user interface techniques included in any portion of the Website or the Content; and/or monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Website by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or frame or use framing techniques to enclose any Content (including any images, text, or page layout) and display any Content within the frame on another website; and/or insert any code or product to manipulate Content in any way that affects, adversely or otherwise any other User’s experience with the Website; and/or make or attempt to make any commercial use or exploitation of the Website or any of the Content; and/or circumvent, disable or otherwise interfere with the security features of the Website or the Content, or any features that prevent or restrict use or copying of any Content or enforce limitations on use of the Content; and/or collect or harvest any personally identifiable information (“PII”), including usernames and passwords, from the Website; and/or create multiple accounts by manual or automated means or under false or fraudulent pretenses; and/or create or transmit unwanted electronic communications or “spam” to other Users of the Website; and/or transmit any viruses, worms, defects, Trojan horses or other code sequence or routines of a destructive nature on the Website; and/or use the Website or the Content to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or use any metatags or any other “hidden text” utilizing any Exosphere trademarks and/or use any device, software or routine that interferes with the proper working of the Website or the Content; and/or claim the Website or any of the Content as your property, your creation, or your work of authorship, in whole or in part; and/or contest or dispute Exosphere’s ownership of all intellectual property rights in the Website and the Content; and/or use the Content after the termination date of your account; and/or fail at any time to provide true, accurate, complete, and current account registration data and information; and/or engage in any activities through or in connection with the Website that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, salacious, injurious, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Exosphere; and/or use the Website and/or the Content, in whole or in part, in any manner not authorized by this Agreement.
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT ANY VIOLATION OF THE FOREGOING PROVISIONS MAY, IN EXOSPHERE’S SOLE DISCRETION AND JUDGMENT, SUBJECT YOU TO THE IMMEDIATE SUSPENSION OR TERMINATION OF YOUR ACCOUNT, AND MAY SUBJECT YOU TO CRIMINAL LIABILITY AND/OR LIABILITY FOR DAMAGES, COSTS, EXPENSES, OR FEES (INCLUDING ATTORNEY’S FEES) INCURRED BY EXOSPHERE IN ENFORCING ITS RIGHTS AGAINST YOU UNDER THIS AGREEMENT.
4. YOUR ACCOUNT.
B. Usernames and Passwords. If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an email notification with a randomly generated initial password) and you agree to the following:
(1) You will not use a username (or e-mail address) that is already being used by someone else, that may impersonate another person, that belongs to another person, that violates the intellectual property or other right of any person or entity, or that is offensive (Exosphere may reject the use of any password, username, or email address for any reason in our sole discretion); and
(2) You will provide accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete for as long as you use the features to which the registration relates; and
(3) You are solely responsible for all activities that occur on the Website under your account, password, and username, whether or not you authorize the activity (except to the extent that any activity occurs due to unauthorized use of your password and username by another person or entity); and
(4) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your computer, phone, pad, tablet, or other Internet Access Device, so that others may not access any password protected portion of the Website using your name, username, or password; and
(5) You will immediately notify Exosphere of any unauthorized use of your account, password, or username, or any other breach of security; and
(6) You will not sell, transfer, or assign your account or any account rights.
Exosphere shall have no liability for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
C. Termination of Your Account.If any information that you provide as part of your account registration is false, inaccurate, outdated, incomplete, or violates this Agreement, or any legal requirement or law, then Exosphere may suspend or terminate your account in its sole discretion and with no liability to you. Exosphere also reserves the general right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice to you and without any liability.
D. Website Access Charges. Exosphere reserves the right, upon reasonable notice, to charge for access to some or all of the Website, charge for access to premium functionality or Content on some or all of the Website, or require a free subscription or account registration to access some or all of the Website (“Subscription(s)”). Exosphere further retains the right to change the terms and conditions for accessing the Website or portions of the Website; and the right to restrict access to the Website or portions of the Website, in whole or in part, based on any lawful eligibility requirements Exosphere may elect to impose (e.g., geographic or demographic limitations). Exosphere may modify, revalue, increase, decrease, or make the Subscriptions free at its sole discretion without advance notice or liability. Unless otherwise stated in this Agreement, in the event that Exosphere terminates or changes the Website, a portion of the Website, Content, or functionality associated with a Subscription in a way that materially diminishes the value of your Subscription, then Exosphere will provide you with either of the following at Exosphere’s sole discretion: a pro rata refund of your unused Subscription corresponding to the value of the diminished features or portion of the terminated or changed Website, or an online credit for future redemption of comparable value corresponding to the value of the diminished features or portion of the terminated or changed Website. The valuation of the pro rata refund or credit will be determined in Exosphere’s good faith business judgment, which determination will be final. The provision of a pro rata refund or credit will be your sole and exclusive remedy with respect to Exosphere’s termination or change of the Website in a way that materially diminishes the value of any Subscription.
E. Your Use of an Internet Access Device and Third-Party Components.You understand and agree that your use of any Internet Access Device and/or all third-party hardware, software, services, telecommunication services (including Internet connectivity), or other items used by you to access the Website (“Third-Party Components”) are the sole and exclusive responsibility of you alone, including all costs of your use of such Third-Party Components, and that Exosphere has no responsibility for such third-party components, services, or your relationships with such third parties. You agree that you shall at all times comply with the lawful terms and conditions of your agreements with such third parties. Exosphere does not represent or warrant that the Website and the Content are compatible with any specific third-party hardware or software or any other Third-Party Components. You are responsible for providing and maintaining an operating environment as reasonably necessary to accommodate and access the Website.
F. Wireless Features.The Website may offer certain features and services that are available to you via your wireless Internet Access Device. These features and services may include the ability to access the Website’s features and upload content to the Website, receive messages from the Website, and download applications to your wireless Internet Access Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Access Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier directly with questions regarding these issues. You understand and acknowledge that Exosphere has no responsibility or liability for your ability or inability to access or take advantage of any Wireless Features due to your carrier, your phone service plan, your Internet Access Device, or any other Third-Party Component.
G. Customer Service.Exosphere will respond to consumer service requests and other similar inquiries if properly communicated to Exosphere.
5. YOUR GENERAL REPRESENTATIONS AND WARRANTIES.
You represent and warrant the following in respect of this Agreement:
A. You have the necessary authority to enter into this Agreement; and
B. You are over the age of thirteen; and
C. If you are between the ages of thirteen and eighteen, you have obtained the consent of your parent or guardian to use the Website and/or the Content; and
D. You will cooperate with all of the instructions, rules, and procedures that apply to your Exosphere account;
E. You have provided and will continue to provide true, accurate, current, and complete registration information; and
F. You will respect and abide by all of your obligations under this Agreement, and you will perform your obligations under this Agreement diligently; and
G. You will comply with all laws and regulations applicable to this Agreement.
6. YOUR INDEMNIFICATION RESPONSIBILITIES.
You shall indemnify and hold harmless Exosphere, its parent company, its officers, directors, employees, agents, and representatives from, and, at your expense, shall defend Exosphere against, any loss, damage or expense (including reasonable legal costs) that Exosphere incurs or becomes liable for as a result of any breach by you of any of the terms of this Agreement; any negligent, reckless or willful act or omission by you or your agents or others for whom you are responsible; any failure by you to comply with applicable laws in performing under this Agreement; any misuse by you of the Website and/or the Content; or, any claim made against Exosphere by any third party for which Exosphere is not liable under this Agreement, and which arises as a consequence of your use of the Website. You shall reimburse Exosphere for its expenses under this Section as they are incurred. Exosphere shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. You, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of Exosphere, enter into any settlement which adversely affects Exosphere’s rights or which does not include, as an unconditional term, a release granted to Exosphere of all liabilities in respect of such claim, action or proceeding.
7. NO OTHER WARRANTIES.
EXOSPHERE’S REPRESENTATIONS AND WARRANTIES THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE ONLY REPRESENTATIONS AND WARRANTIES PROVIDED BY EXOSPHERE WITH RESPECT TO THE WEBSITE AND THE CONTENT, AND ANY OTHER ITEM OR SERVICE PROVIDED BY EXOSPHERE. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO THE EXPRESS WARRANTIES PROVIDED UNDER THE AGREEMENT, THE WEBSITE, THE CONTENT, AND ANY OTHER ITEMS OR SERVICES ARE PROVIDED ON AN “AS-IS,” AND “AS-AVAILABLE” BASIS. EXOSPHERE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING: ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED BY YOU OR ANY USER AS A RESULT OF PROVISION OR USE OF THE WEBSITE AND/OR THE CONTENT; AND ANY WARRANTY OF UNINTERRUPTED OR ERROR-FREE OPERATION OF OR ACCESS TO THE WEBSITE OR CONTENT OR THE PROVISION OF SERVICES. EXOSPHERE RESERVES THE RIGHT TO MODIFY AND OR REMOVE ANY PORTION OF THE SERVICES INCLUDING ANY CONTENT, AT ANY TIME, WITH OR WITHOUT NOTICE. NO ORAL OR WRITTEN INFORMATION BY EXOSPHERE OR ANY OTHER ENTITY OR PERSON SHALL CREATE ANY ADDITIONAL REPRESENTATION OR WARRANTY BY EXOSPHERE. EXOSPHERE DOES NOT REPRESENT, WARRANT, OR GUARANTY TO YOU OR ANY USER ANY PARTICULAR RESULTS TO BE ACHIEVED AS A RESULT OF YOUR USE OF THE WEBSITE, THE CONTENT, OR ANY SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT EXOSPHERE HAS NO RESPONSIBILITY OR LIABILITY FOR ANY ACTION YOU TAKE OR FAIL TO TAKE BASED ON YOUR USE OF THE WEBSITE AND/OR THE CONTENT. EXOSPHERE IS NOT LIABLE FOR ANY DAMAGES THAT YOU OR ANOTHER USER MAY SUFFER ARISING OUT OF USE, DELAY IN PROVIDING, OR INABILITY TO USE, THE WEBSITE AND/OR THE CONTENT. EXOSPHERE IS NOT LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF ANY OF YOUR USER-GENERATED CONTENT OR YOUR REGISTRATION INFORMATION OR DATA.
8. WEBSITE DISCLAIMER.
EXOSPHERE UNDERTAKES NO RESPONSIBILITY FOR, AND DISCLAIMS ALL LIABILITY ARISING FROM, ANY INABILITY OF YOU OR OTHER USERS TO ACCESS THE WEBSITE. EXOSPHERE PROVIDES ACCESS TO THE WEBSITE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MAKES NO REPRESENTATION, WARRANTY, PROMISE, OR GUARANTY THAT THE WEBSITE WILL BE AVAILABLE OR FULLY OPERATIVE AT ANY TIME OR ON AN UNINTERRUPTED OR ERROR-FREE BASIS. THE WEBSITE MAY CONTAIN ERRORS, GLITCHES, BUGS, OR OTHER DEFECTS, AND YOU UNDERSTAND AND ACKOWLEDGE THAT YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDIES IN THE EVENT OF YOUR DISSATISFACTION WITH THE WEBSITE ARE FOR YOU TO NOTIFY EXOSPHERE ABOUT YOUR DISSATISFACTION, IN WHICH CASE EXOSPHERE WILL REVIEW THE COMPLAINT WITH EXOSPHERE’S TECHNICAL EXPERTS, AND/OR TO STOP USING THE WEBSITE.
9. CONTENT DISCLAIMER.
ALTHOUGH EXOSPHERE ATTEMPTS TO PROVIDE HIGH QUALITY CONTENT, EXOSPHERE IS NOT RESPONSIBLE FOR ANY PERCEIVED FALSE, MISLEADING, INCOMPLETE, INACCURATE, OR OTHERWISE DEFECTIVE CONTENT. CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND EXOSPHERE IS NOT RESPONSIBLE FOR ANY RELIANCE UPON CONTENT BY YOU OR OTHER USERS, OR BY ANY THIRD PARTY. THE CONTENT MAY CONTAIN SUBMISSIONS BY THIRD PARTIES THAT MAY BE PERCEIVED AS FALSE OR MISLEADING OR MAY BE PERCEIVED TO HAVE OTHER DEFECTS, AND EXOSPHERE IS NOT RESPONSIBLE FOR SUCH CONTENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDIES IN THE EVENT OF DISSATISFACTION WITH THE CONTENT IS FOR YOU TO NOTIFY EXOSPHERE ABOUT YOUR PERCEPTIONS OF THE CONTENT, IN WHICH CASE EXOSPHERE WILL REVIEW THE COMPLAINT(S) WITH ITS SUBJECT MATTER EXPERTS, AND/OR TO STOP USING THE CONTENT.
10. LIMITATION OF LIABILITY FOR EXOSPHERE.
IN NO EVENT WILL EXOSPHERE’S LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE CONTENT, THE WEBSITE, OR ANY OTHER ITEMS OR SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE CLAIM OR FORM OF ACTION, INCLUDE ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR LOSS OF BUSINESS OR PROFITS, UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF EXOSPHERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. YOU UNDERSTAND AND ACKNOWLEDGE THAT EXOSPHERE’S MAXIMUM AGGREGATE LIABILITY TO YOU UNDER OR RELATING TO THIS AGREEMENT UNDER THEORIES OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION, WILL NOT EXCEED AN AMOUNT, IN AGGREGATE, EQUAL TO THE FEES PAID BY YOU IN THE TWELVE MONTHS PRIOR TO WHEN THE DAMAGES FIRST AROSE. YOU UNDERSTAND AND AGREE THAT YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR RELATIONS WITH OTHER USERS, AND THAT EXOSPHERE SHALL NOT BE LIABLE TO YOU OR ANY OTHER USERS, UNDER ANY CIRCUMSTANCES, FOR ANY DISPUTE THAT ARISES BETWEEN YOU AND ANOTHER USER OF THE WEBSITE AND/OR THE CONTENT.
11. GENERAL PROVISIONS.
A. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California. Disputes arising under this Agreement shall proceed through three levels of resolution, if necessary: negotiations between you and Exosphere, mandatory mediation, and court proceedings. Any dispute which arises under this Agreement and cannot be resolved by good-faith negotiations between the parties within ninety (90) days must be submitted for a mandatory mediation procedure in San Francisco before a neutral mediator chosen and appointed by Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The mediation shall take place within forty-five (45) days after the mediator has been appointed, and at the direction of the mediator. The mediation shall take place on one business day and shall last no longer than ten (10) hours unless the parties mutually agree to an extension of the mediation procedure. The mediator shall apply U.S. and California law to substantive issues and any applicable JAMS procedural rules for commercial mediation to procedural issues. The parties shall bear their own costs for the mediation, and they shall split equally the costs and fees of the mediator. If either party is unsatisfied with the resolution provided by the mediator, either party may file a claim in the appropriate state or federal court sitting in the Northern District of California, with venue in San Francisco. You hereby consent and absolutely agree to the jurisdiction of state and federal courts sitting in California for resolving any disputes arising under this Agreement which cannot be resolved either by negotiations or by mediation between you and Exosphere.
(1) Exosphere’s Right to Injunctive Relief. The foregoing provisions of this Section 11 will not apply to any legal action taken by Exosphere to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any threatened or potential loss, cost, or damage) relating to the Website, any Content, your User-Generated Content and/or Exosphere’s Intellectual Property Rights, Exosphere’s operations, and/or Exosphere’s products or services.
(2) Your Waiver of Injunctive or Equitable Relief. IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSSES, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITE, THEN YOU ACKNOWLEDGE AND AGREE THAT THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT ORDER OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, CONTENT, IDEAS, MATERIALS, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, OR CONTROLLED BY EXOSPHERE OR BY A LICENSOR OF EXOSPHERE.
B. Updates to this Agreement. Exosphere reserves the right to modify this Agreement at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link on the Website, and that your use of the Website after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms and to the most recent version of this Agreement. The Updated Terms will be effective as of the time that Exosphere posts them on the home page of the Website, in the header of this Agreement, or such later date as may be specified in them. You understand and acknowledge that Exosphere shall only be posting the most recent version of this Agreement on the Website, that you are bound by the most recent version of this Agreement at any time you use or access the Website, and, therefore, you agree that it is your responsibility to review this Agreement on a regular and frequent basis.
C. International Issues. Exosphere controls and operates the Website from its offices in the U.S.A. Exosphere makes no representation that the Website is appropriate or available for use beyond the U.S.A. If you use the Website from other locations, you are doing so of your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. Subject to the terms of this Agreement, Exosphere reserve the right to limit the availability of, restrict access to, or discontinue the Website and/or any Content, program, product, service, or other feature described or available on the Website to any person, entity, geographic area, or jurisdiction, at any time and in Exosphere’s sole discretion, and to limit the quantities of any content, program, product, service, or other feature that Exosphere provides. Some content, programs, services, or features may be available on this Website only on a subscription or fee basis.
D. Severability and Interpretation. If any provision of this Agreement is for any reason deemed invalid, unlawful, void, or unenforceable by a court of competent jurisdiction, then that provision will be deemed severable from this Agreement, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this Agreement (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in this Agreement, the word will be deemed to mean “including, without limitation.”
E. Communications. Whenever you communicate with Exosphere electronically, such as via e-mail and text message, you consent to receive communications from Exosphere electronically. Please note that we are not obligated to respond to inquiries that we receive from Users. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
F. Law Enforcement and Termination of Accounts or of the Website. Exosphere reserves the right, without any limitation, to investigate any suspected breaches of its Website security or its information technology or other systems or networks, investigate any suspected breaches of this Agreement, investigate any information obtained by Exosphere in connection with reviewing law enforcement databases or complying with criminal laws, involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, prosecute violators of this Agreement, and discontinue the Website, in whole or in part, or suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Exosphere under this Agreement. Upon suspension or termination of your access to the Website, or upon notice from Exosphere, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately discontinue use of the Website. The provisions of this Agreement, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Exosphere in this Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction and venue, choice of law, and mandatory mediation.
G. Assignment.Exosphere may assign its rights and obligations under this Agreement, in whole or in part, to any party at any time without any notice. This Agreement may not be assigned by you in whole or in part, and you may not delegate your duties under this Agreement, without the prior written consent of Exosphere.
H. No Waiver.Except as expressly set forth in this Agreement, no failure or delay by you or Exosphere in exercising any rights or remedies under this Agreement will operate as a waiver of that or any other right or remedy.
I. No Partnership or Joint Venture. Neither this Agreement, nor any terms and conditions contained herein shall be construed as creating a partnership, joint venture, franchise or agency relationship between you and Exosphere.
J. Complete Agreement. This Agreement contains your entire understanding with Exosphere with respect to the subject matters covered by this Agreement, and it supersedes any and all prior oral or written proposals or understandings.