Terms of Use, Privacy and Copyright
TERMS OF USE
The following Terms and Conditions govern your use of this 1stWorks Corporation web site and the materials accessible on or from the site. Please read them carefully before using the site. Your use of the site means that you accept these Terms and Conditions. If you do not agree with these Terms and Conditions, please do not use the 1stWorks web site or any 1stWorks service.
READ THESE TERMS AND 1STWORKS PRIVACY POLICY CAREFULLY BEFORE USING THE SERVICES DESCRIBED BELOW. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THESE SERVICES. YOUR CLICKING ON THE BUTTON MARKED "I ACCEPT" DURING INSTALLATION AND YOUR CONTINUED USE OF THE SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS.
This Files2Phones Services Agreement (the "Agreement") is made and entered into between you (the "USER") and 1stWorks Corporation ("1stWorks"). Use of the Service (as defined below) signifies USER's agreement to the terms and conditions set forth in this Agreement.
1. Description of the Service
As used in this Agreement, the term "Service" refers to 1stWorks' Files2Phones service, including the PC2ME version, which enables remote browser based access from a computer or an iPhone to the desktop system of a registered Windows PC by participating Files2Phones users on the web or on a private network, all software provided by 1stWorks to the USER to enable use of the Files2Phones service (the "Software"), and all modifications, updates, and revisions thereof, and any documentation provided therewith.
2. Grant of Rights
1stWorks grants USER a non-exclusive, non-transferable, limited license to use the Service in accordance with this Agreement. 1stWorks may, in its sole discretion, change the functions and capabilities of the Service and shall, in its sole discretion, determine the functions and capabilities that will be incorporated into subsequent releases of the Service.
3. Restrictions on Use; Prohibited Uses
USER represents and warrants that (a) only authorized users will access the Service solely in connection with USER's exercise of the license granted hereunder; (b) USER's Service account will not be transferred to, or used on behalf of, another party or entity without 1stWorks' prior written consent; (c) USER will not use or copy the computer code and documentation provided in connection with the Service, except to make a back-up or archival copy of the code as specifically authorized by the copyright law of the United States of America; (d) USER will not remove any copyright, proprietary rights or other notice included in or on any portion of the Service, computer code or documentation, and shall reproduce all such notices in or on all copies made by USER; (e) USER will not distribute, transmit, display, disclose, divulge, reveal, report, publish or transfer the Software to any third party or reproduce or create derivative works based upon the Software to any third party or reproduce or create derivative works based upon the software or any portion thereof; (f) neither USER nor any of its employees, subcontractors or other personnel will attempt to reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover the source code of the Software; (g) USER will not use the Service in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation or to impersonate 1stWorks personnel or other parties or entities; (h) USER will not transmit by means of the Service any materials of any kind which (i) violate, plagiarize, or infringe on the intellectual property or contractual rights of any third party; (ii) are exported in violation of any law, rule, or regulation governing exports from the United States; (iii) contain libelous, defamatory, obscene, pornographic, abusive or otherwise unlawful material; (iv) contain software viruses or any other malicious code designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (v) invade the privacy of third parties, and (i) USER will not use the Service (i) for any purpose other than the issuance of bona fide communications to addressees known to USER; (ii) to violate the security of the Service; or (iii) to attempt to utilize another user's account name or persona without authorization from that user.
4. User Content
USER is solely responsible for the content of any information it makes available by means of the Service. USER expressly agrees that 1stWorks shall not be liable for any action 1stWorks takes to review, record or replay material posted by USER or third parties or to remove or restrict access to such material judged by 1stWorks in its sole discretion to be in violation of any law, regulation or rights of a third party, including, but not limited to, rights under the copyright law, prohibitions on libel, slander and invasion of privacy, or laws pertaining to unfair or deceptive trade practices. 1stWorks has no obligation (and does not necessarily have the ability) to review any material posted or made available by USER or third parties by means of the Service, nor does 1stWorks represent that the Service will necessarily protect the intellectual property rights of parties that post material to the Service.
5. Ownership of Service
USER acknowledges and agrees that 1stWorks retains all title, copyright, patent rights and other proprietary rights in and to the Service and related documentation and computer code, including, without limitation, all copies, modifications, translations and other derivative works that duplicate or are based on the Service or components thereof, and that the Service is proprietary to 1stWorks. 1stWorks reserves all rights not expressly granted herein and no other rights and licenses are granted or deemed to be granted hereunder. USER agrees that any feedback provided to 1stWorks regarding the Service shall constitute, and shall be treated by USER as proprietary information of 1stWorks. USER further agrees that any communication from 1stWorks to the USER shall be treated as requested by USER.
6. Third Party Proprietary Materials
Third party materials accessible to USER through the Service may be the subject of intellectual property rights, including, without limitation, patents, copyrights, trademarks and trade secrets. All rights to such third party materials are retained by the owners of such materials. Except as expressly permitted by the owner of such rights, USER may not reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any such materials.
7. System Resources
(a) USER shall be responsible for installing any computer code required to use the Service on USER's equipment, for any use of the automatic update feature of the computer code, and for assuring proper hardware configurations, audit controls, back-up plans and operating methods, including network overheads associated with use of the Files2Phones client software. If USER requests consulting or support services, 1stWorks may provide such services at a mutually agreed upon fee. (b) USER acknowledges that it may be temporarily disconnected from or logged off of the Service, either due to a system failure or because of USER inactivity and that 1stWorks shall have no liability in connection with any such disconnection or log off. (c) USER acknowledges that it is solely responsible for the operation of its computer system and Internet access. (d) USER agrees to comply with all 1stWorks instructions for installation and use of the Services.
8. Charges and Payment
(a) USER is responsible for all periodic license fees paid for access to the 1stWorks service and no refunds will be provided by 1stWorks where access to the Service is discontinued. 1stWorks further reserves the right, in its sole discretion, to cancel any USER's access to the Service immediately and without notice. (b) USER is responsible for all charges associated with connecting to the Service, including, without limitation, all telephone access lines, telephone and computer equipment necessary to access the Service. (c) USER is responsible for all activities and any third party charges resulting from use of the 1stWorks Service, including, without limitation, taxes levied by any governmental authority in connection with USER's use of the Service. USER will reimburse 1stWorks for any third party charges, including taxes, that 1stWorks is obligated to pay as a result of USER's use of the Service. (d) USER will remain liable for any unauthorized use of its account with the Service until it notifies 1stWorks by email, receipt requested and received at Support@1stWorks.com.
(e) 1stWorks reserves the right to institute or increase fees at any time upon seven (7) days prior notice posted on the 1stWorks Website. If 1stWorks does not receive the full amount of Service account balance within thirty (30) days of the billing date, the lesser of 1.5% per month or the highest percentage allowed by law of the outstanding balance will be added to USER's bill as a late charge each month and shall be due and payable. USER shall also be liable for all attorney and collection fees arising from 1stWorks efforts to collect any unpaid account balance(s).
9. User Information
(a) USER certifies to 1stWorks that it is not a minor, i.e., that it is a bona fide business or, if an individual, at least eighteen (18) years of age. (b) USER agrees to provide 1stWorks with accurate, complete, and updated information required by registration to the Service (Registration Data) including, as appropriate, USER's legal company name and d/b/a, contact name, address, telephone number(s), fax number(s), and e-mail address(es) (if available). USER agrees to submit appropriate payment data, including type of credit card, credit card number and expiration date). USER agrees to notify 1stWorks within five (5) days of any changes in USER's Registration Data. Failure to comply with this provision may result in immediate interruption, suspension or termination of USER's rights to use the Service. (c) USER is solely responsible for maintaining the confidentiality of its passwords, and agrees that 1stWorks will have no obligations with regard thereto. (d) 1stWorks reserves the right to reveal any Registration Data or other information in its possession regarding USER's use of the Service in cooperation with a request or investigation by any governmental body or governmental agency.
10. Encryption of Transmissions
1stWorks encrypts content in USER transmissions utilizing industry standard encryption techniques. Although 1stWorks believes that the techniques it uses are reliable, USER understands and acknowledges that no encryption technique is foolproof and therefore that 1stWorks cannot and does not warrant that transmissions are absolutely secure from third party interception and de-encryption.
11. Indemnification
USER hereby agrees to indemnify and hold harmless 1stWorks and its employees, licensors, independent contractors, providers, subsidiaries and affiliates, from and against any and all liability and costs (including, without limitation, 1stWorks attorneys' fees and costs) incurred by any of them in connection with any third party claim arising out of any breach by USER of the representations and warranties in Section 3 of this Agreement. USER shall cooperate as fully as reasonably required in the defense of any claim.
12. DISCLAIMER OF WARRANTY
THE SERVICE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, 1STWORKS MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SERVICES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, 1STWORKS' NEGLIGENCE. 1STWORKS WILL NOT BE LIABLE FOR ANY FAILURE OF OR DELAY IN PERFORMANCE DIRECTLY OR INDIRECTLY CAUSED BY ACTS OF THE USER, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, CAUSES BEYOND THE CONTROL OF 1STWORKS, INCLUDING BUT NOT LIMITED TO ACTS OF GOD AND GOVERNMENTS AND FAILURES OF THE INTERNET OR THE COMPONENTS THEREOF.
13. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL 1STWORKS BE LIABLE FOR ANY PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, EVEN IF 1STWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL 1STWORKS' TOTAL LIABILITY TO USER FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED $500.
14. Termination
In addition to any other rights of the parties set forth herein, either the USER or 1stWorks may terminate this Agreement at any time upon notice. 1stWorks also reserves the right to restrict, suspend or terminate the Services in whole or in part, without notice, with respect to any breach or threatened breach of Sections 3 or 5, or if USER is subject to charges and 1stWorks is unable to obtain payment due for such charges within thirty (30) days of the date upon which 1stWorks submits a request for payment to USER, or USER's credit card company (depending upon payment method chosen by the USER).
15. Modifications to Agreement
1stWorks has the right to modify this Agreement. Any modification is effective one week after posting on the 1stWorks Home Page (http://www.1stWorks.com), or immediately upon notice by electronic mail, or U.S. mail. USER's continued use of the 1stWorks Service following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). USER's only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of 1stWorks in providing the Services, including, without limitation, (i) any change in the content of the Services, or (ii) any change in the amount or type of Service Fees, is to terminate use of the Service.
16. General
This Agreement (including 1stWorks Privacy Policy which is available for review at http://www.1stworks.com/legal.asp#PrivacyPolicy) constitutes the entire agreement between the USER and 1stWorks with respect to the 1stWorks Service and supersedes all prior agreements between the USER and 1stWorks. Failure by 1stWorks to enforce any provision of this agreement shall not be construed as a waiver of any provision or right. Interpretation and enforcement of this agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflicts of laws principles. Any dispute arising out of or in connection with this Agreement or USER's use of the Service will be filed and prosecuted exclusively in a court of competent subject matter jurisdiction in Boston, Massachusetts. USER consents to personal jurisdiction of such courts over it, and covenants not to assert any objection to proceeding in such courts based on the alleged inconvenience, inefficiency or unfairness of such courts. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including, but not limited to, its costs, both taxable and non-taxable, and reasonable attorney's fees. In the event that any portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. The Service is operated from 1stWorks servers in the United States. USER is responsible for compliance with the laws of the jurisdiction in which it is located. In no event shall USER use the Service in any location where such use is prohibited or restricted by local law or where 1stWorks would incur a tax or fee obligation that would not be paid by USER. USER may not use or export the Service or the products thereof in violation of United States laws and regulations, including, without limitation, export administration regulations.