PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
Electronic Agreement. This Agreement is an electronic contract that sets out the legally binding terms of your use of the Websites and the Service. This Agreement may be modified by Monitorsky from time to time, such modifications to be effective upon posting by Monitorsky on the Website. By accessing and/or using the Websites or becoming a Member, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein.
1. Access and Retention.
In order to access and retain this electronic Agreement, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Please print a copy of this document for your records. To retain an electronic copy of this Agreement, you may save it into any word processing program.
You must be at least eighteen (18) years of age. By using the Website, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
3. Commercial Use of Service.
If you are using and/or accessing the Service on behalf of a company, entity, or organization (collectively, a “Subscribing Entity”), you represent and warrant that:
Illegal and/or unauthorized uses of the Service include, but are not limited to, collecting email addresses of users by electronic or other means for the purpose of sending unsolicited email, unauthorized framing of or linking to the Websites attempting to impersonate another user or person, use of the Service in any fraudulent or misleading manner, any automated use of the system, such as scraping the Websites, automated scripts, spiders, robots, crawlers, harvesting or data mining tools or the like, interfering with, disrupting, or creating an undue burden on the Service or the networks or services connected to the Service, and using the Service in a manner inconsistent with any and all applicable laws and regulations. Illegal and/or unauthorized use of the Service may be investigated, and appropriate legal action may be taken, including without limitation, civil, criminal, and injunctive redress. Use of the Service is with the permission of Monitorsky, which may be revoked at any time, for any reason, in Monitorsky’s sole discretion.
4. Account Security.
You are responsible for maintaining the confidentiality of the username and password that you designate during the registration process, and you are fully responsible for all activities that occur under your username and password. You agree to (a) immediately notify Monitorsky of any unauthorized use of your username or password or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Monitorsky will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. If you share your computer with others, you may wish to consider disabling your auto-sign in feature if you have it linked to your Monitorsky account.
5. Your Use of the Website
a. You must not copy or capture, or attempt to copy or capture, any content from the Websites or any part of the Websites (the “Content”), unless given express permission by Monitorsky.
b. You must not copy, republish, adapt, make available or otherwise communicate to the public, display, perform, transfer, share, distribute or otherwise use or exploit any Content on or from the Service.
c. You must not use any Content in any way that is designed to create a separate content service or that replicates any part of the Websites’ offering.
d. You must not employ scraping or similar techniques to aggregate, repurpose, republish or otherwise make use of any Content.
e. You must not alter or remove, or attempt to alter or remove, any trademark, copyright or other proprietary or legal notices contained in, or appearing on, the Websites or any Content appearing on the Websites.
f. You must not, and must not permit any third party to, copy or adapt the object code of the Website, or reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Website, or circumvent or attempt to circumvent or copy any copy protection mechanism or access any rights management information pertaining to Content.
g. You must not use the Websites to upload, post, store, transmit, display, copy, distribute, promote, make available or otherwise communicate to the public:
- any Content that is offensive, abusive, libelous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, that promotes violence, terrorism, or illegal acts, incites hatred on grounds of race, gender, religion or sexual orientation, or is otherwise objectionable in Monitorsky’s sole and reasonable discretion;
- any information, Content or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright, trademark rights, rights of privacy or publicity, confidential information or any other right; or
- any Content that violates, breaches or is contrary to any law, rule, regulation, court order or is otherwise is illegal or unlawful in Monitorsky’s sole and reasonable opinion;
- any material of any kind that contains any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which will or might overburden, impair or disrupt the Websites or servers or networks forming part of, or connected to, the Website, or which does or might restrict or inhibit any other user's use and enjoyment of the Website; or
- any unsolicited or unauthorized advertising, promotional messages, spam or any other form of solicitation.
h. You must not commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation.
i. You must not rent, sell or lease access to the Website, or any Content on the Website.
j. You must not deliberately impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, for example, by registering an account in the name of another person or company, or sending messages or making comments using the name of another person.
k. You must not stalk, exploit, threaten, abuse or otherwise harass another user, or any Monitorsky employee. If we feel that your behavior towards any of our employees is at any time threatening or offensive, we reserve the right to immediately terminate your membership and you will not be entitled to any refund of any fees paid on the Website.
l. You must not sell or transfer, or offer to sell or transfer, any Monitorsky account to any third party without the prior written approval of Monitorsky.
m. You must not collect or attempt to collect personal data, or any other kind of information about other users, including without limitation, through spidering or any form of scraping.
6. Membership; Pricing.
You may elect to become a paying subscriber to the Service. Please note that the billing policies that are disclosed to you in subscribing to the service are deemed part of this Agreement. Notwithstanding anything herein, you are solely responsible for all taxes associated with your use of the Websites and/or Service.
This Agreement will remain in full force and effect while you use the Websites and/or Service. If you resign or cancel your membership to Monitorsky, to help Monitorsky analyze and improve the Service, you may be asked to provide a reason for your resignation/cancellation. Monitorsky may terminate your membership for any reason by sending notice to you at the email address you provide in your application for membership, or such other email address as you may later provide to Monitorsky. If Monitorsky terminates your membership in the Service because you have breached this Agreement, you will not be entitled to any refund of any fees paid by you. All decisions regarding the termination of accounts shall be made in the sole discretion of Monitorsky. Monitorsky is not required to provide you notice prior to terminating your membership. Monitorsky is not required, and may be prohibited, from disclosing a reason for the termination of your account. Even after your membership is terminated, this Agreement will remain in effect. All terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.
8. Charges on Your Billing Account.
a. General. If you elect to make a purchase from a Seller on the Service, you agree that such payment shall be made on the Website. Monitorsky bills you through an online account (your "Billing Account") for such charges. You agree to pay all charges at the prices then in effect for any use of the Service by you or other persons (including your agents) using your Billing Account, and you authorize Monitorsky to charge your chosen payment provider (your "Payment Method") for the Service. You agree to make payment using that selected Payment Method. Monitorsky reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
b. Recurring Billing. Our subscription plans to the Service consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By entering into this Agreement, you acknowledge that your subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. Monitorsky may submit periodic charges (e.g. monthly) without further authorization from you, until you provide prior notice (confirmed in writing by Monitorsky) that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before Monitorsky could reasonably act. Contact Monitorsky at email@example.com to change your payment method or cancel your paid membership by a provider of your chosen Payment Method (the "Payment Method Provider"). For your convenience, we take your payment information so that your Monitorsky membership will not be interrupted. We auto-renew your membership at the level you selected. Your Monitorsky subscription will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional subscription rate (if applicable). To cancel, simply log into your account and follow the instructions for cancellation; alternatively, you may send us an email at firstname.lastname@example.org. Please note that you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
c. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY MONITORSKY IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE MONITORSKY ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT MONITORSKY MAY CONTINUE CHARGING YOU FOR ANY USE OF THE SERVICE UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION FOR THE SERVICE (CONFIRMED BY YOU IN WRITING UPON REQUEST BY MONITORSKY).
d. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen payment method.
e. Reaffirmation of Authorization. Your non-termination or continued use of the Service reaffirms that Monitorsky is authorized to charge your Payment Method. Monitorsky may submit those charges for payment and you will be responsible for such charges. This does not waive Monitorsky’s right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially subscribed to the Service.
f. Free Trial; Promotion. We may provide a free trial or other promotion (the "Promotion"), which Promotion may provide you access to some or all features afforded to paying members of the Service. In order to avoid being charged a subscription fee for the Service, you must cancel your subscription prior to the termination of the trial period. If you cancel prior to the termination of the trial period yet you are still charged for access to the Service, please contact us at email@example.com.
g. Refunds. If you are dissatisfied with the Service for any reason, please contact us at firstname.lastname@example.org and we will address any problems as soon as practicable. If we deem it reasonable to issue you a refund, we may do so at our sole discretion; however, we cannot guarantee that you will receive a refund or other form of credit or compensation.
9. Modifications to Service.
Monitorsky reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Monitorsky shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
10. Blocking of IP Addresses.
In order to protect the integrity of the Services, Monitorsky reserves the right at any time in its sole discretion to block Members from certain IP addresses from accessing the Website.
11. Content on Monitorsky
Monitorsky retains all proprietary rights in the Websites and the Service. The Websites contains the copyrighted material, trademarks, and other proprietary information of Monitorsky, and its licensors. Except where we have given you express written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information. All content on Monitorsky (the “Content”) is proprietary. Except where otherwise specified in this Agreement, all Content is copyrighted material of Monitorsky and for Monitorsky Members' use only. Distribution of Content to others is strictly prohibited. You agree that Monitorsky would be irreparably harmed by any violation or threatened violation of this section and that, therefore, Monitorsky shall be entitled to an injunction prohibiting you from any violation or threatened violation of this section, without posting bond, in addition to any other right or remedy it may have.
12. Restrictions on Use of Materials.
You acknowledge that Monitorsky contains Content (including, without limitation, audio, video, images and text) that is protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and Monitorsky owns a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on the Websites are trademarks of their respective owners. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other website or networked computer environment is strictly prohibited unless you receive our prior written consent.
13. Repeat Infringers
We will also suspend or terminate your account without warning if ordered to do so by a court, and/or in other appropriate circumstances, as determined by Monitorsky at its sole discretion.
14. Skype and Microsoft Compliance.
15. Limitation of Liability.
In no event shall Monitorsky be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the Websites or Service, or use thereof. Nothing contained in this Websites or in any written or oral communications from Monitorsky or its employees or agents shall be construed to make any promise, covenant, warranty, or guaranty, all of which are explicitly disclaimed hereby, contrary to the statements and disclaimers contained in this paragraph.
The content and functionality on the Websites and the services provided by employees of the Websites are offered "as is" without warranty of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Monitorsky makes no warranties, express or implied, as to the ownership, accuracy, completeness or adequacy of the Websites’ content or that the functionality of the Websites will be uninterrupted or error-free or free from virus or third party attack. You hereby acknowledge that your use of this Websites and the Service is at your sole risk. UNDER NO CIRCUMSTANCES SHALL MONITORSKY, ITS OFFICERS, OWNERS, EMPLOYEES OR AGENTS AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS BE LIABLE FOR ANY DAMAGES, INCLUDING DIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT DIRECTLY OR INDIRECTLY RESULT FROM USE OF, OR INABILITY TO USE, THE WEBSITES OR SERVICE OR THE INFORMATION CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE WEBSITE, EVEN IF MONITORSKY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND REGARDLESS OF THE THEORY OF LIABILITY.
TO THE GREATEST EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL MONITORSKY HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THE AGREEMENT, WEBSITES OR THE SERVICE, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL, COPYRIGHT INFRINGEMENT, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE, OR ANY OTHER DAMAGES OR LOSSES, EVEN IF MONITORSKY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH SUCH LIABILITY IS BASED.
In the event that any of the foregoing limitations are deemed to be unenforceable, to the greatest extent permitted by law, you agree that the entire aggregate liability of Monitorsky and sole remedy available to any Member in any case in any way arising out of or relating to the Agreement, Websites or the Service shall be limited to monetary damages that in the aggregate may not exceed the greater of $500.00 or the sum of any amount paid by the Member or user to Monitorsky during the six months prior to notice to Monitorsky of the dispute for which the remedy is sought.
16. Indemnity by You.
You agree to indemnify and hold Monitorsky, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, arising out of or related to:
a. your use of the Service and/or Websites in violation of this Agreement and/or arising from a breach of this Agreement including without limitation your representations and warranties set forth above; or
b. any activity related to your account, be it by you or by any other person accessing your account with or without your consent unless such activity was caused by the act or default of Monitorsky.
17. Attorney Fees.
In the event that Monitorsky is successful in whole or in part in any action or proceeding related to or arising from this Agreement, you shall be responsible for Monitorsky’s attorneys' fees and costs.
18. Parental or Guardian Permission
Some of the Content on the Websites may not be appropriate for children. CHILDREN UNDER THE AGE OF 18 ARE NOT PERMITTED TO USE THE WEBSITES UNLESS A SUPERVISING PARENT OR GUARDIAN IS PRESENT. INDIVIDUALS UNDER THE AGE OF 18 ARE NOT PERMITTED TO SUBSCRIBE TO OUR FEE-BASED SERVICES OR GIVE MONITORSKY THEIR EMAIL ADDRESS OR ANY OTHER PERSONALLY IDENTIFIABLE INFORMATION.
20. Jurisdiction and Choice of Law; Dispute Resolution.
If there is any dispute arising out of the Websites and/or the Service, by using the Websites and/or Service, you expressly agree that any such dispute shall be governed by the laws of the State of Delaware, without regard to its conflict of law provisions, and you expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of Delaware, for the resolution of any such dispute. Acceptance of the terms and conditions of this Agreement constitutes your consent to be sued in such courts and to accept service of process outside the State of Delaware with the same force and effect as if such service had been made within the State of Delaware. You hereby agree to accept service of process for any action hereunder by certified mail return receipt requested which service shall have the same force and effect as though service had been effected by personal service in the applicable jurisdiction. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions.
21. Arbitration Provision/No Class Action.
Except where prohibited by law, as a condition of using the Websites and/or Service, you agree that any and all disputes, claims and causes of action (collectively, "Claim") arising out of or connected with the Websites and/or Service, shall be resolved individually, without resort to any form of class action, exclusively by binding arbitration under the rules of the American Arbitration Association for full and final settlement of such Claim, and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction thereof. Such arbitration shall be held in accordance with the Rules for Expedited Procedures under the Commercial Arbitration Rules of the American Arbitration Association or other mutually agreeable organization, before a single arbitrator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement), selected by agreement of both parties or by an independent mediator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement) if the parties are unable to agree. The parties shall split the arbitration and/or mediator costs. An award rendered by the arbitrator(s) may be entered and confirmed by the courts of the State of Delaware, County of New Castle, or the United States District Court for the District of Delaware. The parties agree that any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of Delaware, County of New Castle, or the United States District Court for the District of Delaware.
22. No Third Party Beneficiaries.
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
23. Availability Outside the U.S.
24. Entire Agreement.
This Agreement contains the entire agreement between you and Monitorsky regarding the use of the Websites and/or the Service.
25. Severability; Waiver
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. In addition, Monitorsky’s failure to enforce any term of this Agreement shall not be deemed as a waiver of such term or otherwise affect Monitorsky’s ability to enforce such term at any point in the future.
The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Please contact us with any questions regarding this agreement. Monitorsky is a trademark of Monitorsky LLC.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.