(Effective August 1, 2006; last modified August 9, 2006)
BY USING OR VISITING THE SITE, YOU EXPRESSLY AGREE TO BE BOUND BY THESE TERMS AND TO FOLLOW THESE TERMS AND ALL APPLICABLE LAWS AND REGULATIONS IN YOUR USE OF THE SITE. WE RESERVE THE RIGHT TO CHANGE THESE TERMS AT ANY TIME, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE. PLEASE CHECK THIS PAGE OF THE SITE PERIODICALLY FOR SUCH CHANGES.
WE, IN OUR SOLE ABSOLUTE DISCRETION, WILL HAVE THE RIGHT TO REFUSE TO ALLOW YOU TO BECOME A MEMBER. For residents of the United States: THIS SITE IS NOT INTENDED FOR USE BY CHILDREN UNDER THE AGE OF 13. For all other persons: THIS SITE IS NOT INTENDED FOR USE BY CHILDREN UNDER THE AGE OF 18. YOU MUST COMPLY WITH THESE AGE LIMITS TO BECOME A MEMBER. BY BECOMING A MEMBER, YOU REPRESENT AND WARRANT THAT IF YOU ARE A RESIDENT OF THE UNITED STATES, YOU ARE AT LEAST 13 YEARS OF AGE, AND IF YOU ARE NOT A RESIDENT OF THE UNITED STATES, THAT YOU ARE AT LEAST 18 YEARS OF AGE. We do not accept any such registration from, or provide any product or service to, any visitor who identifies himself or herself as being under the applicable age limit.
General Practices & Limits
You also acknowledge that Fisk Design may establish general practices and limits concerning use of the Site, including without limitation, limiting the maximum number of days that email messages or other uploaded content will be retained by the Site, the maximum number of email messages that may be sent from or received by an account on the Site, the maximum size of any email message that may be sent from or received by an account on the Site, the maximum disk space that will be allotted on Fisk Design servers on your behalf, the maximum length of time that an IP address will be assigned for your use, the maximum throughput of traffic from the Internet or associated service (e.g. email, web hosting), and the maximum number of times (and the maximum duration for which) you may access the Site in a given period of time. You agree that Fisk Design has no responsibility or liability for the deletion, for failure to store or to deliver any messages and other communications, for the modification or malformation of data communications over the Site, or for other content maintained or transmitted by the Site.
MODIFICATION, SUSPENSION AND TERMINATION
We reserve the right at any time to suspend, modify or discontinue, temporarily or permanently, any portion of the Site without prior notice. You will not be entitled to a refund during service outages that are caused by our maintenance on the servers or the technology that underlies Site. You agree that we will not be liable to you or to any third party for any suspension, modification or discontinuance.
REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to us that: (i) you have the full power and authority to enter into and perform under these Terms, (ii) your use of the Site will not infringe the copyright, trademark, right of publicity or any other legal right of any third party, and (iii) you will comply with all applicable laws and regulations in using the Site and in engaging in all other activities arising from, relating to or connected with these Terms.
You agree to indemnify and hold harmless Fisk Design as well as their subsidiaries, affiliates, owners, associates, licensees, licensors, officers, agents and other partners and employees (the "Indemnified Parties") from any claim, demand, action, damage, loss, cost or expense, including without limitation, reasonable attorneys' fees, incurred in connection with any suit or proceeding brought against any of the Indemnified Parties arising out of your use of the Site or alleging facts or circumstances that could constitute a breach of any provision of these Terms by you. If you are obligated to indemnify any of the Indemnified Parties, such party will have the right, in its sole and exclusive discretion, to control any action or proceeding and determine whether they wish to settle it, and if so, on what terms.
DISCLAIMERS, EXCLUSIONS AND LIMITATIONS
Disclaimers YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. FISK DESIGNE XPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FISK DESIGN MAKES NO WARRANTY THAT (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, OR THAT (v) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED.
Links and Third-Party Services
ANY THIRD-PARTY LINKS, SERVICES, RESOURCES OR INFORMATION PROVIDED ON OR MADE AVAILABLE THROUGH THE SITE ARE NOT CONTROLLED BY US. ACCORDINGLY, WE DO NOT ENDORSE ANY SUCH LINKED SITES OR THE INFORMATION, MATERIAL, PRODUCTS OR SERVICES CONTAINED ON OTHER LINKED SITES, OR ACCESSIBLE THROUGH THEM. FURTHER, WE MAKE NO WARRANTIES REGARDING SUCH THIRD-PARTY LINKS, SERVICES, RESOURCES OR INFORMATION, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH THIRD-PARTY SERVICES, RESOURCES OR INFORMATION. ACCESS AND USE OF LINKED SITES, INCLUDING INFORMATION, MATERIAL, PRODUCTS AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH THEM, IS SOLELY AT YOUR OWN RISK.
Exclusion of Damages
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (v) ANY OTHER MATTER RELATING TO THE SITE.
We will not be liable to you or any third party for failure or delay in performing our obligations hereunder if such failure or delay is due to circumstances beyond our reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, computer viruses, terrorism, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Site.
You agree that any dispute arising out of or relating to these Terms or your use of the Site will be submitted exclusively to confidential binding arbitration in Virginia. Arbitration under these Terms will be conducted under the prevailing rules of the American Arbitration Association. The arbitrator's award will 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 under these Terms will be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise. Notwithstanding the foregoing, to the extent you have in any manner violated or threatened to violate the intellectual property rights of the site or Fisk, these persons or entities may seek injunctive or other appropriate relief in any state or federal court in the state of Virginia, and you consent to exclusive jurisdiction and venue in such courts.
ACCESS OUTSIDE THE UNITED STATES
Unless otherwise specified, the materials in this Site are presented solely for citizens and residents of the United States and its territories, possessions, and protectorates. Those who choose to access the Site do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Software from this site is further subject to United States export controls. No software from this site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any software from this site, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
The Site is based in and operated from the United States of America. Information which you send to us by email or which we gather from you when you visit our website is held and processed in the United States of America. These Terms shall be binding upon and inure to our benefit, and the our successors, and assigns. You may not assign these Terms without our prior written consent. These Terms contain the entire understanding of the parties regarding their subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding their subject matter. The Terms and the relationship between you and Fisk Design shall be governed by the laws of the State of Virginia and the United States of America without regard to any conflict of law provisions. No failure or delay by a party in exercising any right, power or privilege under these Terms shall operate as a waiver thereof. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms are for convenience only and have no legal or contractual effect.
If you become aware of any activity that may constitute a breach of these Terms, please notify us at info@Fisk Design.net. We will investigate your claim and may then take any action that we, in our sole and exclusive discretion, deem appropriate.
The FiskDesign.Net brand is the trademark of Fisk Design. All rights reserved. All other trademarks on the Site are the property of their respective owners.