Terms of Use
LAST MODIFIED 5-12-09
Welcome to www.miserware.com (The www.miserware.com website and the services it offers are defined collectively as the "Site", "MiserWare", "we" or "us"). The Site is designed to provide product information about various products and services offered by MiserWare, Inc. and to enable those who register to download versions of such software and to exchange information and reviews about their experience using the software. Visitors who do not register for the Site may take advantage of certain features of the Site but will not have full access to the software or related information that is available only to registrants. The Site provides its services to you subject to the conditions set forth in this document and the MiserWare Privacy Policy. By visiting the Site and/or becoming a registrant of the Site, you accept and become bound by these Terms of Use. Please read them carefully, and also read the MiserWare Privacy Policy which governs MiserWare's collection, use, disclosure and storage of Member and visitor information.
ELIGIBILITY
The Site is intended solely for individuals who are 13 years of age or older. Any registration by, use of or access to the Site by anyone under age 13 is unauthorized, unlicensed and in violation of these Terms of Use. By using the Site, you warrant and represent that you are 13 years of age or older and that you agree to and agree to abide by the terms and conditions of this Terms of Use document.
REGISTRATION
In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you that is requested by the MiserWare registration forms ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and update the Registration Data to keep it accurate and complete; and (d) be fully responsible for all use of your account.
COPYRIGHT
All content included on this site, such as text, graphics, logos, button icons, images, audio clips, video clips, digital downloads, data compilations, and software, is the property of MiserWare or its registered users, licensors or content suppliers and is protected by United States and international copyright laws. The compilation of all content on this site is the exclusive property of MiserWare and protected by U.S. and international copyright laws. All software used on this site is the property of MiserWare or its software suppliers and protected by United States and international copyright laws. Except as expressly provided in the License and Site Access section below, no content on the Site may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted or sold in any form or by any means without MiserWare's written permission, except that the foregoing restriction does not apply to your own registrant Content (as defined below) that you legally post on the Site. If you are eligible to use the Site, you are granted a limited license to access and use the Site and the Site's content as set forth in the License and Site Access section below.
TRADEMARKS
MiserWare and other marks indicated on our site are trademarks of MiserWare or its affiliates. Other graphics, logos, page headers, button icons, scripts, and service names are trademarks or trade dress of MiserWare or its affiliates. MiserWare's trademarks and trade dress may not be used in connection with any product or service that is not MiserWare's, in any manner that is likely to cause confusion, or in any manner that disparages or discredits MiserWare. All other trademarks not owned by MiserWare or its affiliates that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by MiserWare or its affiliates.
LICENSE AND SITE ACCESS
MiserWare grants you a limited license to access and make personal use of the Site. This license does not include any rights to resell or make commercial use of the Site or its contents; to collect or use postings for any purposes other than those expressly permitted by the Site; to make any derivative commercial use of the Site or its contents; or to use any data mining, robots, or similar data gathering and extraction tools. Neither the Site nor any portion thereof may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of MiserWare. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of MiserWare without express written consent. You may not use any meta tags or any other "hidden text" utilizing MiserWare's name or trademarks without the express written consent of MiserWare. Any unauthorized use terminates the permission or license granted by MiserWare. You may not use any MiserWare logo or other proprietary graphic or trademark as part of any link to MiserWare without express written permission.
Further, you agree that you will not circumvent, disable or otherwise interfere with security-related features of MiserWare, including without limitation, any features that limit access to or enforce privacy settings applicable to the profiles of registrants, visitor communications or other areas within the Site.
Use of the Site in violation of this license may result in immediate termination of your account and/or the pursuit by MiserWare of any other applicable legal or equitable remedies.
REGISTERED USER CONTENT POSTED ON THE SITE
Registered users of MiserWare may post text, graphics, photographs, videos or other content ("Registered User Content") to the closed "wiki", in response to and to other areas of the Site. However, registered users and visitors are prohibited from posting any content to the Site or communicating any content through any channels within the Site that is illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties. Further registered users and visitors may not post or communicate content that consists of or contains software viruses, political campaigning, commercial solicitations, chain letters, mass mailings, or any form of unsolicited e-mail ("spam"). You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of your content. You may not engage in bullying, harassment, stalking or predation of any other visitor or third party via the Site. You may not use the site for purposes of disseminating sales pitches or for discussing, disclosing or otherwise communicating to or coordinating with any other person or entity your product or services pricing or pricing strategies. You may not upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of MiserWare is objectionable or which inhibits any other person from using the Site or which may expose MiserWare or any registered users or visitors to harm or liability of any type. MiserWare reserves the right (but does not have any obligation) to remove or edit such content. You are solely responsible for the information, photos, profiles, messages, notes, calendar entries or other information and content that you post on or through the Site.
When you post Registered User Content to the Site, you authorize and direct us to make such copies of the Registered User Content as we deem necessary in order to facilitate the posting and storage of the Registered User Content on the Site. By posting Registered User Content on the Site, you automatically grant, and you represent and warrant that you have the right to grant, to MiserWare an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such Registered User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such Registered User Content, and to grant and authorize sublicenses of the foregoing. You may remove your Registered User Content from the Site at any time. If you choose to remove your Registered User Content, the license granted above will automatically expire, however you acknowledge that MiserWare may retain archived copies of your Registered User Content and that MiserWare is not obligated to remove content posted by third parties (e.g., in blogs, communications via the Site or User Groups) that reference your Registered User Content (see also, the Site's Privacy Policy).
MiserWare has the right but not the obligation to monitor and edit or remove any activity or content without notice and in its sole discretion including, without limitation, if MiserWare determines that such content or activity violates these Terms of Use or otherwise is offensive, illegal or might violate the rights, harm or threaten the safety or well being of members or other third parties. You are solely responsible for backing up or creating copies of any content you post. MiserWare takes no responsibility and assumes no liability for any content posted by you or any third party.
COPYRIGHT COMPLAINTS
Complaints that any material posted on the Site infringes a third party copyright generally are governed by the Digital Millenium Copyright Act ("DMCA") which specifies certain procedures that must be followed by the complaining party, MiserWare and the registered user or visitor who posted the content at issue. These procedures are detailed below and must be followed by any party seeking to have allegedly infringing content removed (or contesting such removal) from the Site. Please note that all statements and representations made in the notice and counter-notice below are made under oath and that any false statements or material misrepresentations may subject the party making such statements to liability, including prosecution for perjury.
A. Notice and Take-down Request. If you are a copyright owner and believe that any content on the Site infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. Section 512(c)(3) for further detail):
- A physical or electronic signature of the owner of the copyright or a person authorized to act on the owner's behalf;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringing and information reasonably sufficient to permit MiserWare to locate the material (for instance, by supplying the URL of the page within the Site where the material that is the subject of the notice is located);
- Information sufficient to permit MiserWare to contact you, such as a name, address, telephone number, and, if available, an e-mail address;
- 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 copyright owner whose work or works are being infringed.
MiserWare's designated Copyright Agent to receive notifications of claimed infringement may be reached at the following e-mail and physical address:
MiserWare, Inc.
Melissa Cameron
P.O. Box 11498
Blacksburg, VA 24062
melissa.cameron@miserware.com
You acknowledge that if you fail to comply with all of the requirements of this Section A, your DMCA notice may not be valid. Please note that if you submit a false claim or materially misrepresent that content on the Site is infringing, you may be liable for damages, including court costs and attorneys fees.
Upon receiving a proper Notification of Alleged Copyright Infringement as described in this Section A, we will remove or disable access to the allegedly infringing material and promptly notify the alleged infringer of your claim. We also will advise the alleged infringer of the DMCA statutory Counter Notification procedure described below in Section B by which the alleged infringer may respond to your claim and request that we restore this material.
B.Counter-Notice. If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content at issue, you may send a counter-notice containing the following information to MiserWare's Copyright Agent at the physical and/or e-mail address set forth in Section A above:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location within the Site at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in which your address is located, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, MiserWare may send a copy of the counter-notice to the original complaining party informing that person that MiserWare may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at MiserWare's sole discretion.
DISCLAIMERS, DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY
MiserWare is not responsible or liable in any
manner for any registered user Content or any third party applications,
software or content posted on or communicated within the Site (including,
without limitation, content posted by professionals or "experts"). Although we
provide rules for user conduct and postings, we do not control and are not
responsible for what registered users or visitors post, transmit or share on the
Site and are not responsible for any offensive, inappropriate, obscene,
unlawful or otherwise objectionable content you may encounter on the Site or in
connection with any third party applications, software or content.
The Site may be temporarily unavailable from time to time for maintenance or
other reasons. MiserWare assumes no responsibility for any error, omission,
interruption, deletion, defect, delay in operation or transmission,
communications line failure, theft or destruction or unauthorized access to, or
alteration of, visitor or registered user communications. MiserWare is not
responsible for any technical malfunction or other problems of any telephone
network or service, computer systems, servers or providers, computer or mobile
phone equipment, software, failure of email on account of technical problems or
traffic congestion on the Internet or at the Site or any combination thereof,
including injury or damage to the computer of any registered user or visitor or
other hardware or software, related to or resulting from using or downloading materials
in connection with the Site. Under no circumstances will MiserWare be
responsible for any loss or damage, including any loss or damage to any Registered
User Content or personal injury or death, resulting from anyone's use of the
Site or any content posted on or through the Site or transmitted to visitors,
or any interactions between visitors to the Site, whether online or offline.
THIS SITE IS PROVIDED BY MISERWARE
ON AN "AS IS" AND "AS AVAILABLE" BASIS. MISERWARE MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR
THE INFORMATION, CONTENT, OR MATERIALS INCLUDED ON THE SITE. YOU EXPRESSLY
AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. MISERWARE RESERVES THE
RIGHT TO WITHDRAW OR DELETE ANY INFORMATION FROM THE SITE AT ANY TIME IN ITS
DISCRETION. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, MISERWARE
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MISERWARE
DOES NOT WARRANT THAT THE SITE, ITS SERVERS, OR E-MAIL SENT FROM THE SITE ARE
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MISERWARE WILL NOT BE LIABLE FOR
ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE, INCLUDING, BUT NOT
LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES,
INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF
THE SITE OR ANY OF THE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR
DOWNLOADED FROM THE SITE, EVEN IF MISERWARE IS AWARE OR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, MISERWARE'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS
OF THE FORM OF THE ACTION, WILL NOT EXCEED $5. YOU ACKNOWLEDGE THAT IF NO FEES
ARE PAID TO MISERWARE FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE
RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES
OF ANY KIND FROM MISERWARE, REGARDLESS OF THE CAUSE OF ACTION.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE
EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR
ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU,
AND YOU MAY HAVE ADDITIONAL RIGHTS.
MiserWare reserves the right to change any and all content, software and other items used or contained in the Site at any time and without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof or any affiliation therewith by MiserWare.
APPLICABLE LAW
By visiting the Site, you agree that the laws of the Commonwealth of Virginia, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and MiserWare or its affiliates.
DISPUTES
YOU AGREE THAT THE SOLE AND EXCLUSIVE FORUM
AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR
ARISING OUT OF THESE TERMS OF USE AND/OR THE SITE (INCLUDING YOUR VISIT TO OR
USE OF THE SITE) SHALL BE FINAL AND BINDING ARBITRATION, except that, to the
extent you have in any manner infringed upon or violated or threatened to
infringe upon or violate MiserWare's patent, copyright, trademark or trade
secret rights, or you have otherwise violated any of the user conduct rules set
forth above, then the parties acknowledge that arbitration is not an adequate
remedy at law and that injunctive or other appropriate relief may be sought.
Arbitration under this Agreement shall be conducted by the American Arbitration
Association (the "AAA") under its Commercial Arbitration Rules and,
in the case of consumer disputes, the AAA's Supplementary Procedures for
Consumer Related Disputes ( the "AAA Consumer Rules") (collectively
the "AAA Rules"). The location of the arbitration and the allocation
of costs and fees for such arbitration shall be Blacksburg, Virginia (unless
otherwise provided by the AAA Consumer Rules) and shall be subject to the
limitations provided for in the AAA Consumer Rules (for consumer disputes). If
such costs are determined to be excessive in a consumer dispute, MiserWare will
be responsible for paying all arbitration fees and arbitrator compensation in
excess of what is deemed reasonable. The arbitrator's award shall be binding
and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM
UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM,
INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER MEMBER
OF OR VISITOR TO MISERWARE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE
PERMITTED. In no event shall any claim, action or proceeding by you related in
any way to MiserWare (including your visit to or use of the Site) be instituted
more than one (1) year after the cause of action arose.
You are solely responsible for your interactions with other visitors to the Site. MiserWare reserves the right but has no obligation to monitor disputes between you and other visitors or registered users.
TERMINATION
Miserware may terminate your membership, delete your profile and any content or information that you have posted on the Site and/or prohibit you from using or accessing the Site or any portion thereof for any reason, or no reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under age 13.
INDEMNITY
You agree to indemnify and hold MiserWare, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any registered user Content, any third party applications, software or content that you post or share on or through the Site, your use of the Site, your conduct in connection with the Site or with other users of the Site, or any violation of this Agreement or of any law or the rights of any third party.
SITE POLICIES, MODIFICATION, AND SEVERABILITY
Please review our other policies (including, without limitation, our Privacy Policy). These policies also govern your visit to and use of the Site. We reserve the right to make changes to the Site, our policies, and these Terms of Use at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
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