THIS TERMS OF SERVICE CONTAINS A BINDING ARBITRATION AGREEMENT AND WAIVER OF JURY TRIAL. PLEASE CAREFULLY REVIEW THIS AGREEMENT AND CONSULT WITH COUNSEL BEFORE AGREEING.
Terms of Service
Effective Date: February 2016
Acculis is owned and operated by Acculis, Inc. (hereinafter “Acculis,” “we” or “us”), which provides this website, application and the services, functionality data, information, tools, updates and similar materials delivered or provided there-through (the “Services”) subject to your agreement to and compliance with the conditions set forth in this Terms of Service Agreement (the “Agreement”). This Agreement sets forth the legally binding terms and conditions governing your use of the Services, and the use by the entity on whose behalf you sign up. If you do not agree to these terms and conditions, you may not use the Services.
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, Acculis hereby grants you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to access and use the Services and the materials thereon that are intended to be displayed publicly. No rights not explicitly listed are granted.
While we make reasonable efforts to ensure that the Services remain available at all times, we do not represent or warrant that access to the Services will be error-free or uninterrupted, and we do not guarantee that users will be able to access or use the Services, or their features, at all times. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services, or any part thereof, with or without notice.
The Services may contain typographical errors or inaccuracies, including relating to price, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions and to change or update information at any time without prior notice.
Although Acculis has the right to review, edit, remove or modify information from or on the Services, it may not screen this material or control the sources of this information, and does not guarantee the accuracy, suitability, completeness, currency, quality, adequacy or applicability of any such information.
You must be over the age of 18 to register an account or use the Services.
When you create an account on behalf of an entity, you represent and warrant that you are authorized by said entity to create the account and to bind the entity to this Agreement and to purchases and orders that may be made through that account.
You are not eligible to use the Services if doing so would violate any U.S. law or regulation, including but not limited to export controls or restrictions.
SUBSCRIPTION AND FEES
As more fully described on the Services, certain elements of the Services may require fees for access (the “Pay Services”). Should you elect to participate in Pay Services, you shall pay all applicable fees, as described on the Services in connection with those Pay Services (the “Fees”).
We may use a third-party payment processor (the “Payment Processor”) to charge you the Fees through an online account for use of the Software. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor.
You agree to pay Acculis, through the Payment Processor or otherwise as agreed between you and Acculis, all Fees, and you authorize us, through the Payment Processor or otherwise as agreed, to charge your chosen payment provider (your “Payment Method”).
Certain Pay Services may involve ongoing, self-renewing subscriptions to access certain areas and functionality of the Service (the “Subscriptions”). If you sign-up for a subscription, you will be granted access to the subscribed-to services for the length of time identified when you sign-up. You will be charged in the amounts and at the times identified in the Subscription you select.
Unless you cancel before renewal, except where prohibited by law, Subscriptions automatically renew for an additional term of the same length upon expiration. You may cancel your subscription at any time, but you will not be entitled to a refund for any past payments or future payments due during the remainder of your cancelled term. If you cancel before the end of your Subscription, you will be charged the entire remaining Subscription fees at that time. To cancel your Subscription, please e-mail us at email@example.com.
For any Subscription products, you agree that your receipt of the service is not a service, repair or maintenance to real or personal property.
If you purchase a Subscription, it may result in recurring charges to your Payment Method, and you agree that we may charge such amounts until such a time as your subscription expires or you cancel the subscription, depending on the subscription type. WE MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT.
Your account will be considered delinquent if payment in full is not successful when a charge is initiated. Unless specified in an invoice, amounts due are exclusive of all applicable taxes, levies, or duties, and you will be responsible for payment of all such amounts. If you believe that any specific charge under this Agreement is incorrect, in order to obtain a credit, you must contact us in writing within 30 days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final.
In addition to other applicable remedies, we reserve the right to suspend and/or terminate your access to the Service and/or terminate this Agreement if your Payment Method is declined or fails and Customer’s account therefore is delinquent. Charges to delinquent accounts are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys’ fees and court costs.
RULES OF CONDUCT
Your use of the Services is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
You agree that you will not violate any applicable law or regulation in connection with your use of the Services.
You agree not to distribute, upload, make available or otherwise publish through the Services any suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, or materials similar thereto (“Submissions”) or graphics, text, information, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials (“Content”) that:
is unlawful or encourages another to engage in anything unlawful;contains a virus or any other similar programs or software which may damage the operation of Acculis’s or another’s computer;violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, right of privacy or publicity or other intellectual property right of any party; is false, inaccurate, fraudulent or misleading; or,is libelous, defamatory, obscene, inappropriate, invasive of privacy or publicity rights, abusing, harassing, threatening or bullying.
You may not modify, adapt, translate, copy, reverse engineer, decompile or disassemble any portion of the Services. Further, you may not interfere with or disrupt the operation of the Services, including restricting or inhibiting any other person from using the Services by means of hacking or defacing. Transmitting to or making available in connection with the Services any denial of service attack, virus, worm, Trojan horse or other harmful code or activity is prohibited. You may not attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization. Further, you may not take any action that imposes, or may impose, in Acculis’s sole discretion, an unreasonable or disproportionately large load on Acculis’s infrastructure.
You are not licensed to access any portion of the Services that are not public, and you may not attempt to override any security measures in place on the Services.
CONTENT SUBMITTED OR MADE AVAILABLE TO US
You are under no obligation to submit anything to us, and unless otherwise noted, we will not claim ownership of any Content. However, in order for us to provide the Services, we need your permission to process, display, reproduce and otherwise use content you make available to Acculis.
You acknowledge that Acculis is under no obligation to maintain the Services, or any information, causes, materials, Submissions, Content or other matter you submit, post or make available to or on the Services. We reserve the right to withhold, remove and or discard any such material at any time.
CONTENT SHARED THROUGH THE SERVICES
You understand that by sharing information on the Services, and requesting information to be sent through the Services, you may be revealing information to third parties about yourself, your company or your commercial transactions that you may include. You understand and acknowledge that Acculis is not responsible for the use of any such materials by such third parties, you are fully aware and responsible for the impact of sharing such materials, and you agree that Acculis shall not be held responsible, and Acculis shall be released and held harmless by you from any liability or damages arising out of such conduct or use by such third parties.
OUR INTELLECTUAL PROPERTY
Acculis’s graphics, logos, names, designs, page headers, button icons, scripts, and service names are trademarks, trade names and/or trade dress of Acculis. The “look” and “feel” of the Services (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark law. All product names, names of services, trademarks and service marks (“Marks”) are the property of Acculis or the property of their respective owners, as indicated. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
The software used by Acculis to provide the Services to you is either owned or licensed by Acculis. You are only granted the limited rights to access such software identified herein, and you shall not be deemed to own or have any title to said software, all of which is expressly retained by Acculis and/or its licensors. At the expiration or termination of this Agreement, you are required to delete and destroy any copies of the software that may be in you possession.
PASSWORDS AND ACCOUNTS
You are responsible for controlling the access to and use of your account. Always make sure that your password is kept as confidential. You understand and agree that Acculis may assume that instructions from an individual associated with your account are authoritative and should be acted upon by Acculis. Acculis is not responsible for any unauthorized access to your account or profile, and any ramifications of such access, and is not required to take action to disable any account.
You agree that you will not bring an action against Acculis arising out of or related to any claimed unauthorized access using your account credentials. Under confirmed unauthorized use circumstances, Acculis may take reasonable efforts to disable, lock or otherwise address your situation. In the event that you would like to report a breach, please contact firstname.lastname@example.org with the term “Account Breach Notice” in the subject line. You understand and agree that Acculis may suspend your account upon receipt of such a notice.
ENFORCEMENT AND TERMINATION
Acculis reserves the right to deny all or some portion of the Services to any user, in Acculis’s sole discretion, at any time.
Without limiting the foregoing or assuming additional legal obligations, Acculis has a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law. All grants of any rights from you to Acculis related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
DISCLAIMERS AND LIMITATION ON LIABILITY
EXCEPT WHERE NOT PERMITTED BY LAW, BY USING THE SERVICES YOU AGREE AND ACKNOWLEDGE THAT ACCULIS PROVIDES THE SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. ACCULIS, ITS PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM ACCULIS SHALL CREATE ANY WARRANTY.
USE OF THE SERVICES IS AT YOUR SOLE RISK. ACCULIS DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF INACCURACIES, MISREPRESENTATIONS BY USERS, VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ACCULIS, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICES, EVEN IF ACCULIS AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then you agree that neither Acculis nor any of its subsidiaries, affiliated companies, employees, members, shareholders, or directors shall be liable for (1) any damages in excess of $500.00 or (2) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Services. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
SOME STATES, INCLUDING NEW JERSEY, MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
You agree to defend, indemnify and hold Acculis and its suppliers, subsidiaries, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (a) Submissions or Content you submit, post to or transmit through the Services (b) your use of the Services, (c) your violation of the Agreement, and (d) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of Services.
DISPUTES, GOVERNING LAW AND JURISDICTION
You agree that any claim or dispute arising out of or relating in any way to your use of the Services or any service provided by Acculis, will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the State of New York shall govern this Agreement, and shall be used in any arbitration proceeding.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address: 33 Gold St. Apt 506, New York, NY 10038.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
You and Acculis agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and Acculis agree that parties have each waived any right to a jury trial.
Notwithstanding the foregoing, you agree that Acculis may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
To the extent arbitrations does not apply, you agree that any dispute arising out of or relating to the Services, or to Acculis, may only be brought by you in a state or federal court located in New York, New York. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN NEW YORK.
POLICIES FOR CHILDREN
The Services are not directed to individuals under the age of 13, nor do they contain information which would be potentially harmful to minors. In the event that Acculis discovers that a child under the age of 13 has provided personally identifiable information to us, we will make efforts to delete the child’s information in accordance with the Children’s Online Privacy Protection Act. Please see the Federal Trade Commission’s website (www.ftc.gov) for more information.
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your internet service provider for more information.
Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
Revisions. This Agreement may only be revised in a writing signed by Acculis. In the event that Acculis updates this Agreement and you are made aware of the update, your continued use of the Services after the update shall constitute an agreement to the updated terms.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Acculis as a result of this Agreement or your use of the Services.
Assignment. Acculis may assign its rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without Acculis’s prior written consent, and any unauthorized assignment by you shall be null and void.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Equitable Remedies. You hereby agree that Acculis would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and Acculis with respect to the Services, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.
If you believe in good faith that any material posted on our Services infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright that is allegedly infringed;Identification of the copyrighted work claimed to have been infringed;Identification, with information reasonably sufficient to allow its location of the material that is claimed to be infringing;Information reasonably sufficient to permit us to contact you;A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and,A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
Copyright Agent Acculis
33 Gold St. Apt 506
New York, NY 10038
COMPLAINT POLICY (INCLUDING TRADEMARK AND PRIVACY)
If you believe in good faith that any material posted on the Services infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to email@example.com, containing the following information:
Your name, physical address, e-mail address and phone number;A description of the material posted on the Site that you believe violates your rights or is otherwise unlawful, and which parts of said materials you believe should be remedied or removed;Identification of the location of the material on the Site;If you believe that the material violates your rights, a statement as to the basis of the rights that you claim are violated;If you believe that the material is unlawful or violates the rights of others, a statement as to the basis of this belief;A statement under penalty of perjury that you have a good faith belief that use of the material in the manner complained of is not authorized and that the information you are providing is accurate to the best of your knowledge and in good faith; and,Your physical or electronic signature.
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.