THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND SERVICES.BY ACCESSING THE SITE OR USING THE SERVICE, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SITE OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS THE SITE AND/OR USE THE SERVICES.
1.1 License. Subject to this Agreement, iCharts grants You a non-transferable, non-exclusive, revocable, limited license to use and access the Site and Services solely for Your own personal use.
1.2 Certain Restrictions. The rights granted to You in this Agreement are subject to the following restrictions: (a) You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services, whether in whole or in part, or any content displayed on the Site; (b) You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) You shall not access the Site or use the Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to this Agreement. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.
1.3 Modification. iCharts reserves the right, at any time, to modify, suspend, or discontinue the Site and/or Services (in whole or in part) with or without notice to You. Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days notice from us. Such notice may be provided at any time by posting the changes to the iCharts Site or the Service itself. You agree that iCharts will not be liable to You or to any third party for any modification, price change, suspension, or discontinuation of the Site or Service or any part thereof.
1.4 No Support or Maintenance. You acknowledge and agree that iCharts will have no obligation to provide You with any support or maintenance in connection with the Site or the Services. If iCharts provides support or maintenance in connection with a paid Subscription, you acknowledge and agree that such support or maintenance ices is only available in English, via email.
1.5 Ownership. Excluding any User Content that You may provide (as defined below), You acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site, the Services and their content are owned by iCharts or iCharts’s suppliers. Neither this Agreement (nor Your access to the Site or use of the Services) transfers to You or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1.1. iCharts and its suppliers reserve all rights not granted in these Agreement. There are no other licenses, by implication, estoppel or otherwise.
2.1 Account Creation. In order to use certain features of the Site, and/or to purchase a paid subscription to the Services, You must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information You submit is truthful and accurate; (b) You will maintain the accuracy of such information. You may delete Your Account at any time, for any reason, by following the instructions on the Site. iCharts may suspend or terminate Your Account in accordance with the terms of this Agreement.
2.2 Account Responsibilities. You are responsible for maintaining the confidentiality of Your Account login information and are fully responsible for all activities that occur under Your Account. You agree to immediately notify iCharts of any unauthorized use, or suspected unauthorized use of Your Account, your credit card, if applicable, or any other breach of security. iCharts cannot and will not be liable for any loss or damage arising from Your failure to comply with the above requirements.
3.1. If You purchased a paid subscription to the Services (a “Subscription”), You shall pay all fees, including for any additional Services purchased by You or usage that exceeds the thresholds at the rates posted, as well as any taxes, applicable to such Subscription, as published on the Site. iCharts may change such fees at any time and in its sole discretion, provided that any such change shall only become effective at the end of the then-current term of Your Subscription.
3.2. Subscription membership in the Services is on a continuous service basis. This means that, subject to the terms of this Agreement, iCharts will automatically renew Your Subscription at the end of its term unless You cancel Your Subscription in writing at any time prior to the end of the then-current Subscription. You will be charged a renewal rate equal to the rate for the immediately preceding Subscription period, based upon the Subscription program (annual, quarterly, monthly, etc.) that You have chosen, unless iCharts has notified You of any new rate in advance. A cancellation of a Subscription requested by through Your account page will become effective on the date that the then-current Subscription period expires.
3.3. If You have elected to pay Your Subscription fees referred by credit card, You hereby warrants that the credit card information provided by You is correct, and You shall promptly notify iCharts of any changes to such credit card information. You acknowledge and agree that if Your credit card payment cannot be processed for any reason, iCharts may suspend or cancel Your Subscription without notice or liability to You.
3.4 If You are located in a country embargoed by the United States, or are on the US Treasury Department’s list of Specially Designated Nationals, You are not permitted to purchase a Subscription or any other paid services from iCharts.
4.1 “User Content” means any and all information and content that a user submits to, or uses with, the Site or Service (e.g., content in the user’s profile or postings). You are solely responsible for Your User Content. You assume all risks associated with use of Your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of Your User Content that personally identifies You or any third party. You hereby represent and warrant that Your User Content does not violate our Acceptable Use Policy (defined in Section 3.3. You may not represent or imply to others that Your User Content is in any way provided, sponsored or endorsed by iCharts. Because You alone are responsible for Your User Content, You may expose yourself to liability if, for example, Your User Content violates the Acceptable Use Policy. iCharts is not obligated to backup any User Content, and Your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining Your own backup copies of Your User Content if You desire.
4.2 License. You hereby grant (and You represent and warrant that You have the right to grant) to iCharts an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit Your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including Your User Content in the Site. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to Your User Content.
4.3 Acceptable Use Policy.
4.3.1 The following terms constitutes iCharts “Acceptable Use Policy”: You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content: (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (c) that is harmful to minors in any way; or (d) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
4.3.2 In addition, You agree not to: (a) upload, transmit, or distribute to or through the Site or Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) use the Site or Services to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services, or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site) or Services for which You have not paid, whether through password mining or any other means; (f) harass or interfere with any other user’s use and enjoyment of the Site; (g) use software or automated agents or scripts to produce multiple accounts on the Site or Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site or Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file); and (h) engage in excessive usage of the Site or the Services, as determined by iCharts in its sole discretion, including usage that adversely affects the speed, responsiveness, or functionality of the Site, or disrupts the availability of the Site and the Services for other users.
4.4 Enforcement.We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against You in our sole discretion if You violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying Your User Content, terminating Your Account. You further acknowledge and agree that iCharts may cooperate with any governmental authority in connection with any investigation into Your use of the Site or the Services, including use in contravention of applicable laws, and may disclose any of Your User Content, and any other information pertaining to Your use of the Site or the Services, to such governmental authority in connection with any such investigation.
4.5 Feedback. If You provide iCharts with any feedback or suggestions regarding the Site (“Feedback”), You hereby assign to iCharts all rights in such Feedback and agree that iCharts shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. iCharts will treat any Feedback You provide to iCharts as non-confidential and non-proprietary. You agree that You will not submit to iCharts any information or ideas that You consider to be confidential or proprietary.
You shall indemnify, defend and hold harmless iCharts, its affiliates, and their respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including attorneys’ fees on a full indemnity basis) arising out of or in connection with: (a) Your use of the Site or the Services, including Your use of or reliance on any information or materials obtained through the use of the Site or the Services; (b) any other use of the Services by a third party using Your account (whether or not authorized by You); (c) Your breach of this Agreement, including the Acceptable Use Policy; or (d) Your User Content. iCharts reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify us, and You agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of iCharts. iCharts will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.
This Agreement shall automatically become effective upon Your first use of the Site or the Services, and continue indefinitely until it is terminated. iCharts may suspend or terminate Your rights to use the Site and/or the Service (including Your Account) at any time for any reason at our sole discretion, including for any use of the Site or Service in violation of this Agreement. In addition, if You engage in excessive usage of the Site or the Services (as described in Section 4.3.2(h), iCharts may take such action as it considers necessary to prevent such excessive usage and to restore the availability of the Site and the Services to other users, including by limiting or suspending Your access to the Site and the Services, or by canceling Your Subscription and terminating this Agreement. You acknowledge and agree that iCharts may, in its sole discretion, take any measures iCharts reasonably deems necessary or desirable to prevent further use by You of the Site or Services, including by blocking Your IP address. Upon termination of Your rights under this Agreement, Your Account and right to access and use the Site and Service will terminate immediately. You understand that any termination of Your Account may involve deletion of Your User Content associated with Your Account from our databases. iCharts will not have any liability whatsoever to You for any termination of Your rights under these Agreement, including for termination of Your Account or deletion of Your User Content. Even after Your rights under these Agreement are terminated, the following provisions of these Agreement will remain in effect: Sections 1.2 through 1.5, Sections 3.4, 3.5 and Sections 4 through 11.
7.1. YOU ACKNOWLEDGE AND AGREE THAT THE SITE AND THE SERVICES ARE PROVIDED “AS IS,” “WHERE IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” AND THAT ICHARTS (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. ICHARTS (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
7.2 YOU ACKNOWLEDGE AND AGREE THAT ICHARTS HAS NO RESPONSIBILITY OR LIABILITY FOR THE LOSS OR DELETION OF, OR FAILURE TO RECEIVE, PROCESS OR STORE ANY OR YOUR USER CONTENT. YOUR USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU, AND NOT ICHARTS, IS RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS, AND USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES.
7.3 You understand that iCharts may use third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Site and Service.
8.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ICHARTS, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF USE OR DATA, OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF ICHARTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ARISING OUT OF:
(a) THE USE OR PERFORMANCE OF, THE DELAY IN PROVIDING, THE FAILURE TO PROVIDE, OR THE INABILITY TO USE, THE SITE OR THE SERVICES, OR
(b) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SITE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SITE OR THE SERVICES;
(c) UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE OR THE SERVICES OR IN RELIANCE UPON ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES;
(d) ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF A THIRD PARTY’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, OR
(e) ANY USER CONTENT SENT USING, OR INCLUDED IN, THE SITE OR THE SERVICES BY ANY THIRD PARTY.
8.2 IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USING THE SITE AND THE SERVICES.
8.3 IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, ICHARTS, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS IS LIABLE TO YOU FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ICHARTS’S (OR SUCH AFFILIATES’, DIRECTOR’S, OFFICER’S, EMPLOYEE’S, SERVANT’S OR AGENT’S, AS APPLICABLE) TOTAL LIABILITY IN RESPECT OF SUCH AMOUNTS SHALL NOT EXCEED THE GREATER OF: (a) THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), OR (b) THE AMOUNTS ACTUALLY RECEIVED BY ICHARTS FROM YOU UNDER THIS AGREEMENT IN THE PRIOR TWELVE (12) MONTHS.
8.4 YOU ACKNOWLEDGE AND AGREE THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, ICHARTS WOULD NOT BE ABLE TO OFFER THE SITE OR THE SERVICES, AND THAT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF THEY WOULD CAUSE YOUR REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES, AND SO THE FOREGOING LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU TO THAT EXTENT.
iCharts respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site who are repeat infringers of intellectual property rights, including copyrights. If You believe that one of our users is, through the use of our Site or Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
11.1. iCharts may provide references, frames or hyperlinks to internet websites maintained by third parties. In addition, iCharts may share usage metrics with Service Providers to: (a) help improve the overall performance of the Site and/or Services; and (b) provide operational or other support to iCharts. iCharts does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. iCharts is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.
11.2. You acknowledge and agree that You, and not iCharts, are responsible for determining which laws may apply to Your use of the Site and the Services and assessing Your obligations under such laws.
11.3. The communications between You and iCharts use electronic means, whether You use the Site or send us emails, or whether iCharts posts notices on the Site or communicates with You via email. For contractual purposes, You: (a) consent to receive communications from iCharts in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that iCharts provides to You electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect Your non-waiveable rights. You may give notices to iCharts under this Agreement by email to email@example.com.
11.4. This Agreement comprises the entire agreement between iCharts and the You relating to the Site and the Services.
11.5. The use of the terms “includes” and “including”, and similar terms, shall be deemed not to limit what else might be included.
11.6. This Agreement shall be governed by the laws of the State of California, without reference to its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Your use of the Site or Services.
11.7. You may not assign this Agreement without iCharts’ prior written consent, which may be withheld in iCharts’ sole discretion. iCharts may assign this Agreement at any time without notice to You.
11.8. In the event of any dispute, claim, question, or disagreement between You and iCharts ("Dispute"), You and iCharts shall first use reasonable efforts to settle the dispute, claim, question, or disagreement. To this end, You and an authorized member of iCharts' shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither You nor iCharts shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.
You agree that any Disputes shall be adjudicated in the state and federal courts of the State of California, U.S.A. Venue for any Disputes shall be the Superior Court of California, County of Santa Clara for state court cases, and the United States District Court of the Northern District of California for federal court cases. You agree to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agree not to bring any Disputes in any other court or adjudicative body. You hereby consent to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waive any right that You may have to assert that such forum is not convenient or that any such court lacks jurisdiction.
Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator's decision shall be final and legally binding.
In the event of any litigation (including arbitration) between You and iCharts, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys' fees, costs, and expenses relating to the Dispute.
11.9. The failure by iCharts to enforce any right or provision of this Agreement shall not constitute a waiver of that provision or of any other provision of this Agreement.
11.10. If any provision of this Agreement shall be determined to be invalid or unenforceable by a court, such provision shall be deemed severable and the remainder of this Agreement shall remain in full force and effect.
11.11 iCharts is located at140 South Whisman Road, Mountain View, California 94041. If You are a California resident, You may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.12 Copyright © 2017 iCharts, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site or through the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.