legal
June 1, 2011 Howsimple Welcomes You. 1. Howsimple and You 1A. These Terms of Service (“TOS”) apply to the executable code version of the Howsimple Advanced Numerous Document Interface (ANDI™) browser, the Howsimple web site located at www.howsimple.com (the “Website”), and any Howsimple products, software or services that you may use ( collectively the “Services”). You may be subject to additional terms of service, as applicable which become legally binding on you when you use the Services. You will be notified when you make use of those services. Unless otherwise stated, these Terms of Service apply to all Services provided by Howsimple. 1B. When you access and make use of the Services in the present form, or as later amended, with the exception of services that may be provided to you by Howsimple under a separate written agreement, you are agreeing to these TOS which create a legally binding agreement between you and Howsimple. 1C. We suggest that you access and become familiar with these TOS. We also suggest that you periodically review these TOS, as they are subject to revision from time to time, at Howsimple’s sole discretion. The date in the upper left hand corner of this page identifies the last date that these TOS were updated. You understand and agree that by using the Services after such changes have been posted, you are agreeing to these TOS, as amended. If you do not agree to any provisions of the TOS as amended, then you agree to immediately cease using the Services and uninstall all copies of the Software (as defined in Section 7A below) in your possession or control. Please print or save a copy of the most current version of these TOS for your future reference. 2. Services Provided 2A.You acknowledge and agree that by accepting these TOS, Howsimple will be providing the Services to you subject to the terms hereof. 2B. From time to time, the Services may be improved upon or change without notice to you. 2C. Howsimple may permanently or temporarily end the Services, or any parts thereof, at any time, at Howsimple’s sole discretion, without notice to you. You may stop your use of the Services at any time. 2D. You consent to and understand that your Howsimple account or accounts may be disabled after which you may not access the Services, files, content, or details of your account(s). 2E. You acknowledge and agree that Howsimple may, in its sole discretion, establish limitations on the number of transmissions that you may send or receive through the Services, and/or the amount of storage space used for the provision of any of the Services. 3. When you use the Services 3A. You represent and warrant that any registration information you provide in order to register for any of the Services (the “Registration Information”) will be valid, accurate, and current. We may immediately terminate your access to any of the Services upon our determination that any false or otherwise inaccurate Registration Information was intentionally provided by you. 3B. You consent to and understand that the Services and/or any particular use, and/or purpose of use of the Services may be limited or restricted by: (i) the laws of the jurisdiction in which you access and use the Services, (ii) any and all applicable state and Federal regulations, (iii) generally accepted practices or guidelines (including but not limited to those governing export of data or software to and from the United States or other relevant countries), and (iv) these TOS. 3C. It is a violation of these TOS for you to access or attempt to access the Services by any means other than through the interface provided by Howsimple, or to access or attempt to access the Services through any automated means not approved by Howsimple. Should you use an automated means to access the Services, or any portion thereof, you agree that you will comply with the instructions provided in any robots.txt file that may be present on or part of the Services. 3D. The Website and the Services are the private property of Howsimple. Your access and use of the Services is only with our permission and subject to the limitation of the licenses we grant to you in accordance therewith. Any unauthorized access and use of the Services will be deemed, among other things, as a trespass and we reserve the right to pursue our legal rights against you for any such unauthorized access or use, including seeking civil remedies and equitable relief to the fullest extent possible, as well as referral of any such matters to appropriate law enforcement agencies. As a material term of these TOS, you expressly agree that you shall not do any of the following: (i) Deploy, or facilitate the use or deployment of any script, routine, program or any other automated means, method or device in connection with your use of the Services for any unauthorized purpose. (ii) Deploy or facilitate the use or deployment of any automatic or manual device, process or means to circumvent, avoid or defeat any of our security measures or systems. Any conduct by you that in our sole discretion restricts, inhibits, or interferes with any other authorized user from using or enjoying t the Service is expressly prohibited. 3E. You agree that you will not engage in any activity that interferes with or disrupts the Services or the servers and networks which are connected to the Services. You are prohibited from doing any act that has the effect of undermining the integrity of our system, the Services and the methods by which we provide the Services. 3F. You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services, or any portion thereof, for any purpose whatsoever, without the prior written consent of Howsimple. 3G. You will be held personally liable for breach of your obligations under these TOS and for the consequences of such breach including being held liable to pay for any losses or damages suffered by Howsimple. 3H. Nothing about the manner in which the Services are terminated by Howsimple affect the rights of Howsimple regarding the delivery of the Services as set forth in these TOS. 4. Account Privacy 4A. The confidentiality of passwords for any account that you use to access the Services is your responsibility and you are solely responsible to Howsimple for activities in your account[s]. You agree to notify Howsimple of any unauthorized or improper use of your password and/or your account(s) and you agree to the use of your data according to Howsimple’s Privacy Policy. 5. Online Content 5A. Any content including, but not limited to, data files, text, video, pictures, music, and sound (“Content”) which you access by your use of the Services are the sole responsibility of the person or persons who posted such Content. 5B. Content that you view, read or hear while utilizing the Services is likely to be protected by intellectual property rights of other persons and/or entities. You acknowledge that by using or modifying such Content, you may violate such intellectual property rights. 5C. Howsimple may pre-qualify, modify, flag, refuse or remove any Content from any Service, but is under no obligation to do so and therefore you use the Services at your own risk knowing that you may view, read or hear Content that is offensive to you. You may make use of preference settings, when and if available, to filter out Content that you do not want to view, read or hear, or you may make use of third party fee-based services to limit access to material that is not desired by you. 5D. You are solely responsible for the Content that you create, view, read, hear, transmit or display and the consequences for so doing. You acknowledge and agree that Howsimple has no responsibility to you or to any third party for Content that you create, view, read, hear, transmit or display. 6. Proprietary Rights 6A. The legal right, title and interest in and to the Services, including any intellectual property rights which exist in the Services (registered or not, and wherever in the world those rights exist) belong to Howsimple. Services most likely contain the confidential information of Howsimple that you agree not to disclose without the prior written consent of Howsimple. 6B. You do not have permission to use any trade name, trademark, service mark, logo, domain name of Howsimple, or the Content or the look and feel of the Website and the Services. 6C. Your limited license to Howsimple does not include any right, title or interest from you to Howsimple to any Content that you create, submit, post, transmit or display on, or through, the Services, including any intellectual property rights which may reside within that Content (whether those rights are registered or not, and wherever in the world those rights may exist). You agree that you are responsible for protecting and enforcing your rights and Howsimple has no obligation to do so for you. 7. Your License to use Howsimple Software 7A. Upon receipt of your Registration Information, if any, or your use of the Services, you will be granted a personal, worldwide, royalty-free, non-assignable, and non-exclusive license (the “License”) to use the software provided to you by Howsimple in the Services (“Software”). The purpose of the License, among other things, is to allow you to make use of the Software and Services in accordance with these TOS. 7B. It is a violation of the License if you copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software, or any part thereof, unless expressly permitted, required by law, or unless you have been given permission to do so in writing by an authorized representative of Howsimple. 7C. The License and the rights granted to you thereby cannot be assigned or sub-licensed by you to any third party. 8. Your License to Howsimple 8A. Whenever you submit, post, display or publish Content that you own (or to which you have a legitimate right enabling you do to so), on or thorough the Services, you will retain any allocable copyright and other rights to the Content. Simultaneously, you grant Howsimple a perpetual, irrevocable, worldwide, royalty-free, non-exclusive license to reproduce, adapt, make available, modify, translate, display and distribute any and all such Content, or any portion thereof, through the Services, for the limited purpose of Howsimple’s display, distribution and marketing of its Services. You shall retain any copyrights and other rights to your posted, displayed, published or publicly performed Content on or through the Services while granting Howsimple a perpetual, irrevocable, worldwide, royalty-free and non-exclusive license to make any and all such Content, or any portion thereof, available in connection with the provision of syndicated Services to other individuals, companies, entities, or affiliates. Your use of the Services further provides Howsimple, in it’s sole discretion, a license to adapt as necessary and send your posted, shared, published, publicly performed Content, or any portion thereof, over public networks using a variety of media. You hereby affirm your granting of such license to Howsimple. 9. How the Software is updated 9A. In order to provide the best possible services to you, Howsimple may periodically and automatically download and install updates of the Services to your computer or device. This may include bug fixes, improved security and/or performance updates, or new features and functionality, the deletion of old features and functionality, or simply updates that Howsimple determines to be helpful or useful to you or to Howsimple. You agree to receive and, if necessary, implement all updates of the Software as part of your use of the Services. 10. How to Terminate the Services 10A. To terminate the Services, you may simply destroy all copies of the Software in your possession or control and cease to use the Software and Services by any and all means. 11. When Howsimple Terminates the Services 11A. The Services can be terminated by Howsimple if: (i) You have breached, act as if you intend to breach, or are otherwise unable to comply with any provision of these TOS and/or any of the representations made by you in accordance with your use of the Services including, but not limited to the accuracy of any Registration Information and your compliance with the terms of the License; (ii) The Services are required to be terminated in accordance with any applicable law (e.g., if provision of the Services to you is determined to be unlawful); judicial decree, mandate, judgment or order, or (iii) Services to users in the country in which you reside or where you access the Services are terminated; or (iv) The provision of the Services is no longer commercially viable for Howsimple to provide. 11B. In the event that you breach any term, condition or restriction of these TOS, the License shall be immediately terminated without further notice to you whereupon your right to access and use the Services will be immediately revoked and you agree to promptly destroy all copies of the Software in your possession or control and do all other things reasonably necessary to terminate your access and use of the Services. 11C. In the event that the Services are terminated for any reason, the obligations and liabilities under these TOS shall be unaffected and shall survive any such termination. 12. EXCLUSION OF WARRANTIES 12A. TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND INFORMATION PROVIDED ON ANY HOWSIMPLE WEB SITE OR SOFTWARE ARE PROVIDED "AS IS," AND WITHOUT WARRANTY, AND ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED, AND YOU HEREBY AGREE TO WAIVE ALL SUCH WARRANTIES. 12B. HOWSIMPLE OFFERS AND YOU USE THE SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED "AS IS," “WITH ALL FAULTS’” AND “AS AVAILABLE.” 12C. HOWSIMPLE EXPRESSLY MAKES NO REPRESENTATION OR WARRANTY THAT: (A) ITS SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE CONTINUOUS, ERROR FREE, SECURE OR TIMELY, (C) THAT INFORMATION YOU OBTAIN THROUGH USE OF THE SERVICES WILL BE ACCURATE OR EVEN RELIABLE, AND (D) THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. 12D. YOU ARE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA RESULTING FROM YOUR DOWNLOADING AND / OR USE OF THE SERVICES. 12E. ABSOLUTELY NO COMMUNICATION FROM HOWSIMPLE (IN ANY FORM) ABOUT THE SERVICES SHALL CREATE A WARRANTY AND NO WARRANTIES ARE CREATED IN THIS TOS. 13. LIMITATION OF LIABILITY 13A. IN NO EVENT WILL HOWSIMPLE, ITS MEMBERS, OFFICERS, EMPLOYEES, SHAREHOLDERS, DIRECTORS, AFFILIATES, CONTRACTORS, SUBCONTRACTORS, SUPPLIERS, AGENTS, SUBSIDIARIES, SUCCESSORS OR ASSIGNS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER INDIRECT (INCLUDING WITHOUT LIMITATION, COST OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICES, CONTENT OR OTHER MATERIALS PROVIDED OR AVAILABLE HEREUNDER, OR USE OF ANY OTHER LINKS OR LINKED WEB SITE, EVEN IF HOWSIMPLE IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES AROSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL BASIS. THE TERM "DAMAGES" INCLUDES, WITHOUT LIMITATION, ATTORNEY FEES, ANY LOST PROFITS, BUSINESS INTERRUPTION AND LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM. YOU ACKNOWLEDGE THAT THE ECONOMIC TERMS OF THIS AGREEMENT REFLECT THE FOREGOING ALLOCATION OF RISK AND SUCH ALLOCATION OF RISK IS A SIGNIFICANT INDUCEMENT FOR HOWSIMPLE TO PROVIDE THE SERVICES, WEB SITE AND OTHER CONTENT AND MATERIALS. 13B. THESE LIMITATIONS ON HOWSIMPLE’S LIABILITY TO YOU SHALL APPLY WHETHER OR NOT HOWSIMPLE HAS BEEN ADVISED OF, OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. 14. Copyright and trademark policies 14A. When Howsimple finds potential copyright infringement of its property, it will respond accordingly within the guidelines of applicable domestic and/or international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and will terminate the accounts of infringing users accordingly and, when and where Howsimple deems appropriate, prosecute such infringing users to the fullest extent of the law. 15. Advertisements 15A. You acknowledge that Howsimple may receive advertising fees and therefore may place advertisements within the Services. Subject to the provisions of our Privacy Policy, the content and the frequency of any such advertisement may be targeted to a user based on information derived from the Services and your use thereof, including but not limited to queries made, browsing history, preferences and other information. The number of and the manner in which advertisements are displayed are subject to change at Howsimple’s sole discretion. 16. Other content 16A. You acknowledge that Howsimple has no control over resources accessed through websites and links which are provided by third parties. Howsimple does not endorse or recommend any such sites, their respective advertisers or content and you agree to hold Howsimple harmless for any losses or damages that you may experience as a result of accessing any such websites. 17. Miscellaneous 19A. If, while using the Services, you purchase goods and/or download or use software provided by third parties, you acknowledge and agree that you are subject to any such third parties’ terms and conditions and that these TOS do not supersede the terms and conditions of any such third parties. 19B. These TOS constitute the entire agreement with respect to your access to and use of the Services. Any provision of these TOS that a court of competent jurisdiction, anywhere in the world, decides are unenforceable shall be severable from these TOS in that jurisdiction without in any way invalidating the remaining provisions of these TOS. The unenforceability of any provision in a given jurisdiction shall not make that provision unenforceable in any other jurisdiction. If Howsimple provides Services to you under a separate written agreement, then the terms of any such agreement are intended to be in addition to these TOS and unless otherwise stated therein, shall not affect the provisions of these TOS. 19C. No failure or successive failures of Howsimple, its successors or assigns, to enforce any covenant or agreement, and no waiver or successive waivers on their part of any condition of these TOS shall operate as a discharge of such covenant, agreement, or condition, or render the same invalid, or impair the right of either party, its successors and assigns, to enforce the same in the event of any subsequent breach or breaches by you or your successors or assigns. 19D. Where Howsimple has provided you with these TOS in English; you agree that only English language versions of these TOS shall be used to enforce these TOS. 19E. It is a violation of these TOS if you in any way change, alter or modify proprietary rights notices (including copyright and trademark notices) that are displayed in or on the Services. It is a violation of these TOS for you to use any trademark, service mark, trade name, logo of any entity in a way that reasonably may cause any confusion concerning ownership or the authorized use thereof. 20. Law that Applies to these TOS 20A. These TOS, and your relationship with Howsimple under these TOS, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You agree to submit to the exclusive jurisdiction of the Superior Court of California located in Orange County, California to resolve any legal matter arising from these TOS. Notwithstanding the foregoing, you agree that Howsimple shall be allowed to apply for injunctive remedies (or other, applicable equitable relief) in any jurisdiction without the need of posting bond or other surety. 20B. Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Howsimple infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Website or any of the Service offered through it are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Howsimple to locate the material on the Website; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has 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 (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Additionally, if you believe in good faith that a notice of copyright infringement has been wrongly filed by Howsimple against you, the DMCA permits you to send Howsimple a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Site should be sent to Howsimple at the locations and emails addresses provided in the Contacts section of the Website. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, please be advised that there can be penalties for false claims under the DMCA. 20C. Attention: California Users Section 1789.3 of the California Civil Code (the “Electronic Commerce Act of 1984" California Civil Code, Section 1789.1, et seq.) requires us to inform you that you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Boulevard, Sacramento, California 95834 or by telephone at (916) 445-1254, or (800) 952-5210, in order to resolve any complaint regarding a service provided to you through this Website or to receive further information regarding the use of such services. © 2011 Howsimple, LLC. All Rights Reserved.
