Terms of Use

NetBackups General Terms of Use

This document sets forth your legal agreement with InteractiveTechnology Limited (hereinafter referred to as “Company,” “we,” “us,” or “our.”   Your use of any NetBackups website and any and all products and services provided through or by such websites (collectively, including such websites and all such services, the “Site”) is subject to these Terms of Use (the “TOU”). For the purposes hereof, the users of the Site are referred to as “you”, “your” or “User”.

Some services on the Site may also be subject to additional or different terms (“Supplemental Terms”) including but not limited to those which may be incorporated by reference.  If there is any conflict between this TOU and the Supplemental Terms, the Supplemental Terms take precedence in relation to the Site.  This TOU and any applicable Supplemental Terms and any other documents which are incorporated by reference may collectively referred to as the “Terms”.

 

Acceptance of Terms

BY ACCESSING, BROWSING AND/OR USING THE SITE AND INFORMATION OR MATERIALS OFFERED ON OR VIA THE SITE, YOU BECOME A USER OF THE SITE AND EXPRESSLY ACKNOWLEDGE THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE READ, UNDERSTOOD, ACCEPT AND AGREE TO EACH OF THE TERMS AND CONDITIONS SET FORTH BELOW.  IF YOU DO NOT AGREE TO ACCEPT EACH AND ALL OF THE FOLLOWING TERMS AND CONDITIONS AS SET FORTH BELOW, PLEASE DO NOT ACCESS, BROWSE OR USE THE SITE OR ANY OF ITS SOFTWARE, SERVICES, INFORMATION, MATERIALS OR OTHERWISE.

Privacy

Prior to providing any personal information to us about you on the Site, please review our Privacy Policy located at http://www.netbackups.co.ke/index.php/icons/privacy-policy which is hereby incorporated by reference (as amended and supplemented from time to time).  You agree and warrant that any and all information provided to us is true and correct, including, but not limited to, your name, physical or electronic mailing address, phone number, fax number and other information requested (and you agree to update the same for the duration of this Agreement).  You understand that all information provided by you to us will be subject to the terms and conditions of our Privacy Policy.

Site Information

The Company does not represent or endorse the accuracy or reliability of, and specifically and expressly disclaims any and all liability related to (whether directly or indirectly), any information displayed, uploaded, posted on the Site, or otherwise distributed or transmitted through the Site by any person or entity.  Moreover, the Company in its sole and absolute discretion reserves the right to refuse to post, host or display, and the right to remove or delete your data from this Site, for any reason (or no reason) at any time without any notice thereof to you or any other person or entity.  Any comments, feedback or advice that you provide to us at, through, in connection with or relating to this Site shall be deemed to be non-confidential and you agree that we (and our affiliates) shall have an unrestricted, absolute and perpetual right and royalty-free license to post and publish the same (in our sole and absolute discretion) for any purpose whatsoever.

Your Conduct, Behavior and Duties

You represent, warrant and agree that you will not, directly or indirectly: (a) falsify or misrepresent any information regarding your identity or intentions with respect to any matter in connection with the Site; (b) post, publish, transmit, distribute, or upload any information or materials through the Site that the Company, in its sole discretion, deems unlawful, obscene, lewd, sexually explicit, derogatory, abusive, threatening, discriminatory with respect to race, religion or gender, or is otherwise reasonably disagreeable, offensive or objectionable; (c) post, publish, transmit, distribute, or upload any information or materials through the Site that contains a virus, or any other harmful software code or programming routine, that could impair operation or function of the Site or access of others who may, do or will access, browse or use the Site; (d) post, publish, transmit, distribute, offer or upload any information or materials through the Site that is (in whole or part) unlawful, false, deceptive, misleading, fraudulent, or otherwise reasonably disagreeable, offensive or objectionable, including (without limitation) any information, document, communication or transmission that constitutes, affirms, encourages or supports the commission of any illegal activity or any violation of any local, state, national or applicable foreign law, rule or regulation, including (without limitation) any laws that protect the intellectual property, personal or privacy rights of any person or entity; (e) post, publish, transmit, distribute, or upload any information, content, documents or materials through or in connection with the Site that in any way violates any patent, copyright, trademark or any other proprietary intellectual property rights of others; (f) post, publish, transmit, distribute, or upload any information, documents, content or materials through or in connection with the Site that violates any legal, property, intangible, confidentiality or privacy rights of others; and (g) post, publish, transmit, distribute, or upload through or in connection with the Site any bulk e-mail solicitations, chain letters, solicitations, advertisements, pyramid schemes or any other unsolicited communication, including, without limitation, spamming those who access, browse or use the Site.

You are prohibited from violating or attempting to violate the security of the Site, or any third party network, system, server, or account, including, without limitation, engaging in any of the following activities: (a) accessing data, folders, information, content, materials, servers, accounts, databases, etc. which you are not authorized to access, (b) impersonating our personnel (or any other person or entity) or engaging in any other pre-texting, (c) attempting to (i) probe, scan or test the vulnerability of a system, server, account or network, or (ii) breach security, validation or authentication measures  of any of the foregoing, (d) attempting to interfere with, disrupt or disable service or access or use of the Site to or for any user, host, server, account or network, including, without limitation, via means of overloading, “flooding,” “mailbombing,” “denial of service” attacks, or “crashing”, (e) forging any TCP/IP packet header or any part of the header information in any e-mail or posting, (f) taking any action in order to obtain services to which you are not entitled, or (g) attempting to utilize another party’s account name or persona without first obtaining authorization from that party. You are also prohibited from attempting any action designed to circumvent or alter any method of measuring or billing for the Site for any User. Violations of these policies and the Site’s security may result in civil or criminal liability for the offending party.

Additional Representations and Warranties

You  hereby represent, warrant and agree that: (a) you have full capacity, right and authority to enter into this Agreement; (b) your use of the Site will not, directly or indirectly, infringe (in whole or in part) any intellectual property rights, including, but not limited to, patent, copyright, trademark, trade secret, mask work or other intellectual property rights, personal or privacy rights of any third party or Company; (c) your use of the Site will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Site will not in any manner, directly or indirectly, disparage, defame, discredit or harm Company or its reputation or goodwill; (e) your entry into this Agreement and/or use of the Site here under does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; and (f) your entry into this Agreement and use of the Site is for a bonafide purpose and you are not using the Site to resell any Services or distribute or otherwise use the Services for an improper, illegal or unethical purpose.

Legal Compliance

You agree to comply, at your sole and own expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement.  You will immediately report to us any and all suspected or actual violations of the Agreement by others that you are aware of (or should be aware of, based upon the circumstances).

Regulatory Compliance

Company may be subject to regulation by agencies of the government of United States of America and/or foreign governments, including, but not limited to, the United States Department of Commerce, which prohibit export or diversion of certain technical products to certain countries.  You represent and warrant that you will comply in all respects with the applicable rules and regulations of any and all agencies of the governments of the United States of America and foreign governments that are applicable to your use of the Site and performance of this Agreement; provided, that in the event or instance of any conflict or ambiguity between the applicable rules and regulations of agencies of the United States of America and those of any foreign government, the former (i.e. of the U.S.A.) shall be given priority and precedence.

Disclaimer of Legal Compliance

YOU EXPRESSLY UNDERSTAND AND ACKNOWLEDGE THAT THE SITE AND ANY SERVICES, PRODUCTS OR PROGRAMS MAY NOT CONFORM TO, OR MEET WITH, ANY OR ALL APPLICABLE REQUIREMENTS OF THE SARBANES-OXLEY ACT OF 2002 (AS AMENDED), THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) (AS AMENDED), THE GRAMM-LEACH-BILEY ACT (AS AMENDED) AND OTHER LAWS, RULES AND REGULATIONS.  THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SITE AND ITS COMPLIANCE WITH THE AFOREMENTIONED LAWS OR ANY OTHER LAWS, RULES OR REGULATIONS.

Accounts

Each User must register online through the Site for a User account and select a user name and password.  You are solely and exclusively responsible for maintaining the confidentiality and security of such user name and password.  Moreover, you are responsible and liable for any and all activities that occur under your account.  You agree to notify us immediately in the event of any unauthorized use of your account or any breach of account security of which you become aware or that you reasonably do or should suspect.  However, regardless of such notification, we will under no circumstances whatsoever be liable or responsible for any loss that you incur as a result of any unauthorized use of your account (whether such use occurs with or without your knowledge).  In addition, you will be responsible in the event that we (or any third party) incurs any losses or damages whatsoever as a result of your account (whether authorized or known, or not, by you).  Registration data submitted by you as part of the online account registration process to become a User shall be subject to section above entitled “Privacy.” 

User Fees

The fee payable by a User shall be a monthly, recurring non-refundable fee as set by the Company and listed on the Site (the “User Fee”) and shall be payable by automatic, pre-authorized charge to the User’s credit card provided to us beginning on the date (“User Date”) that you become a User.  Thereafter, the User Fee shall be charged and payable to us on every monthly anniversary of the User Date, and shall be recurring and continuing for the entire annual User Term, regardless of whether the User Term ends earlier or is terminated by you without cause, or by us with cause).  No User Fee shall be refundable to you.  You agree to submit to us complete and accurate information for billing and payment purposes, including but not limited to a valid credit card number with available credit sufficient to pay the User Fees on a monthly basis for the User Term.  You authorize us to take reasonable actions to verify the authenticity and validity of any credit card number provided to us.  Under no circumstances will we be liable for any overdraft charges or similar fees that are incurred by you.

In connection herewith, you are responsible for paying any and all applicable taxes (including, without limitation, sales tax, services tax, use tax and value-added tax), duties, levies, charges and excises imposed by any government agency or entity, except for those taxes that may be based on the income of Company.

Proprietary Information

All Company information, materials, content, images, graphics, software, trademarks, logos, service marks provided on or through the Site (collectively the “Proprietary Information”) is and are the sole and exclusive property of the Company or are duly licensed by the Company, and may not be used, copied, reproduced, distributed, republished, uploaded, downloaded, displayed, posted or transmitted in any form or by any means without the prior express written consent of the Company.  The Proprietary Information, including (without limitation) all HTML code, server-side code, XML code, and compilations of meta tag key words, specification and trade name data, newsletters and publications, press materials, product and service descriptions, testimonials and all similar data and information, is exclusively owned or duly licensed by the Company, and is and shall, to the maximum extent allowed by applicable law, be protected by copyright and trademark laws and international treaty provisions.  To the extent that the Proprietary Information is also covered by copyright law (and you are hereby advised that much or all of the Proprietary Information is copyrighted), violators are given notice that any such violations may result in severe civil and criminal penalties.  Violators of this paragraph will be prosecuted to the maximum extent possible.  You have no right to the Proprietary Information.  COPYING OR REPRODUCTION OF THE PROPRIETARY INFORMATION, INCLUDING, BUT NOT LIMITED TO, ANY PORTION OF THE SITE IS EXPRESSLY PROHIBITED.  Proprietary Information also includes, without limitation, information, materials, content, images, graphics, software, trademarks, logos, service marks licensed or made available to Company by third parties.

Intellectual Property

Except as expressly set forth herein, nothing on the Site or in this TOU is intended to grant any rights (including, without limitation, under or with respect to any patent, mask work right, copyright, trademark, title, interest in products or trade secret of Company) to you.  All such rights shall remain the sole and exclusive property of the Company and you shall gain no interest, right or title therein by entering into or performing this TOU.  Further, nothing contained on or through the Site or in this TOU should be construed as granting (whether express, by implication, estoppel or otherwise) any license or right to use any intellectual property, trademarks, copyrights or other proprietary information (or the Proprietary Information) displayed on or through the Site.  The absence of a product or service name or logo anywhere in the text of the Site does not constitute a waiver of any trademark or other intellectual property rights concerning that name or logo.  UNDER NO CIRCUMSTANCES WHATSOEVER MAY YOU REVERSE ENGINEER, DECOMPILE, OR OTHERWISE ATTEMPT TO DECIPHER THE SITE OR ITS SERVICES OR ANY OTHER ASPECT OF THE COMPANY’S TECHNOLOGY, INTELLECTUAL PROPERTY, PRODUCTS, SERVICES OR PROPRIETARY INFORMATION.

Notification of Infringement

Company will, in appropriate circumstances, terminate the access and use of the Site of Users who infringe the rights, security or property of others.  If any individual or entity believes that his, her or its rights, security or property has been used or copied in a prohibited manner (or otherwise infringed) through or in connection with the Site, please provide our Infringement Agent a written notice containing the full details of such infringement and the action requested of the Company. Our Infringement Agent may be contacted by providing a written notice to us as described in the section entitled “General” below, with a copy to the same address and clearly marked on the envelope or cover of the notice as “Attn: Infringement Agent”.

Supervision

The Company does not assume responsibility for verifying the content, materials, documents and information passed through or accessed via or in connection with the Site.  The Company is not responsible for any damages, losses, expenses or other injuries incurred by You as a result of, relating to, or in connection with, any content, materials, documents and information transmitted, distributed or uploaded through or in connection with the Site.

Access

We may alter, suspend or discontinue (in whole or in part) the Site or Your access to use the Site at any time for any reason (or no reason) without any notice or liability to You or to any third party (provided, that if you are a User and we suspend or discontinue the Site or your use of the Site, without cause, you will not be charged for the period during which you are not allowed to access the Site through no fault of your own.  Additionally, the Site may become unavailable due to routine maintenance or malfunction of computer equipment or for other reasons, and in any such instance, may result in damages to your systems or operations; we shall no liability whatsoever to you under any such circumstance.  You shall be solely and wholly responsible for ensuring that any information, documents, materials or content obtained through or in connection with the Site (i) does not contain any virus or other computer software code or subroutine designed to disable, erase, impair or otherwise damage your systems, software or data, and (ii) that are lawfully and properly used, uploaded, shared or accessed by you, are backed up or stored on your own systems or servers. .

Links to Third Parties

The Site may contain links and pointers to Internet sites maintained by third parties.  The Company does not operate or control in any respect any information, products or services on such third-party sites.  Third-party links and pointers are included solely for the convenience of Users, and do not constitute any endorsement or verification thereof by the Company.  You expressly agree to assume sole and whole responsibility for use and access of third party links and pointers.  The Company expressly disclaims any and all liability and responsibility for third party links and pointers and the content of any third party websites, services or software.  Furthermore, you are directed to take any and all precautions to ensure that third-party websites, services and software are free of such harmful items as (without limitation) viruses, worms, trojan horses and other items of a destructive nature.  The Company shall have no duty whatsoever to investigate, evaluate, recommend or otherwise provide information with respect to any third party website, services or software.

Links to Us

Unless another party has entered into a written agreement with the Company, a party may only provide a hypertext link to the Site on another web site, if such hyperlink complies with ALL of the following conditions: 1) the link must be a text-only link with the Site URL (i.e. www.netbackups.co.ke) ; 2) the link must “point” to the homepage URL of the respective site (i.e. http://www.netbackups.co.ke and not to any other pages within the Site; 3) the link, when activated by a visitor to the Site, must display the Site full-screen and not with a “frame” on the linking web site; and 4) the appearance, position and other aspects of the link must not be such as to directly or indirectly damage or dilute the goodwill associated with the name and trademarks of the Company and the Site, and must not create the false or misleading appearance that the Company or the Site is associated with, or endorses or sponsors, the linking web site.  The Company may selectively revoke its consent to any link at any time (for any reason or no reason) in the Company’s sole and absolute discretion.

Disclaimer of Warranties

THE SITE AND ALL INFORMATION, SERVICES, CONTENT AND MATERIALS THEREON AND THEREWITH ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. TO THE FULLEST AND MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  SPECIFICALLY, BUT WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT: (1) THE INFORMATION, SERVICES, MATERIALS OR CONTENT ON THE SITE IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THE SITE OR THROUGH THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (3) ANY DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  YOU HEREBY ACKNOWLEDGE THAT USE OF THE SITE IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION.

Limitation of Liability

NOTIWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT, AND UNDER NO CIRCUMSTANCES, WHATSOEVER (AND REGARDLESS OF THE PURPORTED THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) WILL COMPANY BE LIABLE (EVEN IF COMPANY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR: (1) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS TOU, THE SITE, ANY COMPANY SERVICES OR THE RELATIONSHIP BETWEEN YOU AND COMPANY; OR (2) AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS TOU, THE SITE, ANY COMPANY SERVICES OR THE RELATIONSHIP BETWEEN YOU AND COMPANY, WHICH EXCEEDS THE AMOUNT ACTUALLY PAID BY YOU TO COMPANY TO ACCESS AND USE THE SITE , OR, IF YOU HAVE NOT PAID TO USE THE SITE, THE TOTAL AMOUNT OF $25.00 (TWENTY-FIVE UNITED STATES DOLLARS).  Each of you and us expressly acknowledge and agree that the limitations of liability set forth in this paragraph are an essential element of this TOU, and in the absence of such limitations, the economic terms of this TOU would have been substantially different than provided herein and/or the parties would not have entered into this TOU.

Indemnification

You will, at your own expense, defend, indemnify and hold harmless the Company, its parents, subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, agents, representatives, contractors, employees and customers (each, an “Indemnitee”, and collectively, “Indemnitees”) from and against any and all loss, cost, expense, damage, claim, demand, or liability, including (without limitation) reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by, or demanded of, an Indemnitee, that, directly or indirectly, arises out of, results from or occurs in connection with: (a) your negligence, bad faith or willful misconduct; (b) your breach of any of the provisions of this Agreement; (c) your violation of any applicable law, rule or regulation; (d) (i) infringement by you of any intellectual property, proprietary or other rights of any third party, including (without limitation) any patent, copyright or trademark, (ii) unlawful disclosure, use, or misappropriation of a trade secret by you, or (iii) violation of any other third-party intellectual property right, or other property or personal right of any person or entity; or (c) your use of the Site or any Company service, software or website, in any manner whatsoever.  We reserve the right, at our own cost and in our sole and absolute discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses, and reimburse our reasonable costs and expenses (including, without limitation, reasonable attorney and professional fees) in connection with, relating to or arising from our defense in such matter.

Changes or Specialized Modifications

The Company may, in its sole and absolute discretion, modify or change any aspect of the TOU on a prospective basis, at its sole discretion, effective immediately upon posting such modifications or changes (or a revised version of this TOU incorporating such modifications or changes therein) on or through the Site.  You agree to periodically review this TOU to ensure that you are in compliance with any ongoing changes or modifications that are made to the TOU.  To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to the Terms would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid the Terms from being deemed illusory or unenforceable.  Your continued use of the Site after any such modifications or changes are posted will constitute your complete and unequivocal acceptance of such any modifications or changes to the TOU.  The Company reserves the right, but has no obligation whatsoever, to modify or change the TOU as it applies to any specific User, provided that any and all such special modifications must be in writing and signed by the parties.  Any specialized modifications so made shall apply exclusively and only to that party to such written agreement.

Termination

This TOU shall remain effective until terminated (i) by us at any time upon notice thereof to you, or (ii) by you upon ten (10) business days’ prior written notice to us.  Termination of this TOU for shall be governed further by the provisions set forth above regarding the User Fees.

Upon any termination or expiration of this TOU, any and all provisions and obligations, which are of a continuing nature, shall survive, including (without limitation) the sections titled Proprietary Information, Indemnification and Limitation of Liability.

General

(a)        If any provision of this TOU is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (i) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (ii) the remaining provisions of this TOU will be unaffected thereby and will continue to remain in full force and effect at all times.

(b)        This TOU shall be governed by and construed in accordance with the substantive and procedural laws of the State of California, without regard to the conflicts of law provisions thereof.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to the Agreement.

(c)        If You have any dispute with us relating to this TOU, You will not have the right to pursue a claim in court, or have a jury decide the claim and You will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By accessing the Site, you agree to binding arbitration as provided below.

(d)        Company will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with Company. If those efforts fail, You agree that any complaint, dispute, or disagreement you may have against Company, and any claim that Company may have against you, arising out of, relating to, or connected in any way with this TOU, our Privacy Policy, or any Terms shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). Furthermore, this Section shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You further agree that the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;

(ix) Company may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after Company has given notice of such modifications and only on a prospective basis for claims arising from this Agreement occurring after the effective date of such notification.

Unless otherwise stated herein, any notices hereunder shall be in writing and be delivered by hand, mail (as specified below), fax, or email to the persons and at the addresses as set forth herein (for Company, as provided in this paragraph, and for you, as provided in your account details, as provided by you to us) and shall be deemed given upon (i) posting of such notice on the Site; (ii) delivery if by hand, (iii) three (3) business days after mailing if by certified mail, return receipt requested, or (iv) confirmation of transmission in the case of fax or email.  Either party may change its address for receipt of notice to the other party by delivering notice of such change pursuant to this paragraph.

 

Company will not be liable for any failure to perform acts due to causes beyond its control (including, without limitation, electrical outage, Internet Service Provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war or Acts of God).  If any such circumstances occur, Company shall provide reasonable notice to you of the same and the time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.

Neither this TOU, nor any rights or obligations hereunder, may be assigned or otherwise transferred (in whole or in part) by you without the prior express written consent of Company.  Any attempted assignment by you in violation of this paragraph shall be null and void.  This TOU will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns.  Company may freely assign or transfer (in whole or in part) this TOU with or without notice thereof to you.

This TOU may be executed in any number of counterparts, each of which will be deemed to be an original and all of which will be deemed a single agreement; provided, that your written or electronic signature is not necessary to manifest your assent or acceptance of this TOU, and your use of the Site as discussed herein shall in and of itself constitute such assent and acceptance.  This TOU may be accepted and executed in the manner provided herein and such acceptance as provided herein shall constitute a valid and legally binding agreement.

The article, section and paragraph headings used in this TOU are for convenience only and shall not be used in interpreting or construing this TOU.  This TOU shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel.

Nothing in this TOU will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties.  Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party.  Nothing contained in this TOU should be construed to give either party the power to direct or control the day-to-day activities of the other party.

The provisions of this TOU are intended solely for the benefit of Company and you, and shall create no rights or obligations enforceable by any other party.

The rights and remedies of Company under this TOU are cumulative and may be exercised singularly or concurrently in each and every instance.  You acknowledge and agree that any actual or threatened breach of any of the provisions contained in the paragraphs titled Intellectual Property and/or Proprietary Information herein may result in immediate, irreparable and continuing damage to Company for which there is no adequate remedy at law, and Company may apply to any court of competent jurisdiction for immediate equitable relief (including, without limitation, specific performance or injunctive relief) without the need for posting of any bond.

Failure by Company to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision, unless (and only to the extent) that such waiver is in writing and signed by a duly authorized representative of Company.

This TOU contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof.  Except as provided in the paragraph titled “Changes or Specialized Modifications”, any modification, addendum, or amendment to this TOU will not be effective unless the same is in writing and signed by duly authorized representatives of both parties hereof.

Revision Date

This TOU was last revised on June 06, 2014.

Copyright © 2014 Interactive Technology Limited. All Rights Reserved.