Terms and Conditions of Use
This website (the “Site”) is published and maintained by Image Terrain, Inc. (the “Company”) primarily to provide access to and use of the Company’s patent-pending image creation and manipulation technology. When you access, browse, or use this Site, any of its features, and the services offered through the Site (the “Services”), you accept and agree to, without limitation or qualification, the terms and conditions set forth below.
Your Right to Use the Site and its Contents
The Site is only for business use by individuals 18 years of age or older. Upon registration, the Company will allow you to choose a username and password to access and use the Site and the Services. You are not authorized to access or use the Site or the Services through use of any username and password other than the one chosen by you upon registration.
You agree to (i) provide accurate, current and complete information about you as may be prompted by any registration forms for the Site (“Registration Information”); (ii) maintain and promptly update the Registration Information and any other information you provide to the Company, to keep it accurate, current and complete; (iii) maintain the confidentiality of your username and password to access and use the Site and the Services; and (iv) accept full responsibility for all consequences of all actions initiated and all conduct that occurs under your username and password.
Your authorization to access and use the Site and the Services with your username and password extends only while you or your company is a party to a subscription agreement with the Company for access to and use of the Company’s patent-pending image creation and manipulation technology (the “Subscription Agreement”). The terms and conditions of the relevant Subscription Agreement are fully incorporated in these Terms and Conditions of Use by reference. If and when your Subscription Agreement terminates, you agree to promptly cease use of your username and password to access and use the Site and the Services.
As long as you comply with these Terms and Conditions of Use, the Company grants you a non-exclusive, non-transferable, limited right to enter, display, and use the Site and the Services. You agree not to interrupt or attempt to interrupt the operation of the Site or the Services in any way. Notwithstanding anything to the contrary, the Company reserves the right, without notice and in its sole discretion, to cancel or restrict your access to and use of any portion of or the entirety of the Site and any Services in the event of a violation of the Terms and Conditions of Use or breach of a Subscription Agreement. You understand and agree that the Company may do so without any liability whatsoever.
Content of the Site
The Company offers through the Site a service pursuant to a Subscription Agreement that permits the storage and manipulation of graphic images in order to achieve novel and varied patterns incorporating elements of these graphic images (the “Image Manipulation Service”). The Company may, from time to time, make messaging services, chat services, bulletin boards, message boards, blogs, other forums and other such services available on or through the Site. In addition to any other rules or regulations that we may post in connection with a particular service, you agree that you shall not upload, post, transmit, distribute or otherwise publish through the Site or any of the Services, any materials which:
(i) restrict or inhibit any other individual from using and enjoying the Site or the Services;
(ii) are fraudulent, unlawful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent;
(iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law;
(iv) violate or infringe the rights of third parties including, without limitation, copyright, trademark, trade secret, confidentiality, contract, patent, rights of privacy or publicity or any other proprietary right;
(v) contain a virus, spyware, malware or other harmful component;
(vi) contain embedded links, advertising, chain letters or pyramid schemes of any kind; or
(vii) constitute or contain false or misleading indications of identity, origin, endorsement or statements of fact.
Nothing in this Agreement shall require the Company to monitor or edit the Site for objectionable or infringing materials. If at any time the Company chooses, in its sole discretion, to monitor or edit the Site, the Company nonetheless assumes no responsibility for any submission by or content of users unaffiliated with the Company (“Users”), no obligation to modify or remove any inappropriate materials or information, and no responsibility for the conduct of any authorized User. The Company does not endorse and has no control over what Users post or submit to the Site. The Company reserves the right, in its sole discretion, to reject, refuse to post or remove any submission, posting or other data or image, in whole or in part that it perceives to objectionable, inappropriate or infringing. You understand and agree that the Company has no liability whatsoever if it refuses to post your submissions or content or edits, restricts or removes your submissions or content.
The Company does not claim any ownership rights in any audio, images, software, text, artwork, video clips and other materials (“Content”) that Users upload, transmit or post to the Site ("User Content"). The Company also does not claim any ownership rights in any patterns created through use of the Image Manipulation Service (“Patterns”) that a User purchases pursuant to a Subscription Agreement (“Purchased Patterns”). However, by uploading your User Content to the Site, transmitting your User Content through using the Services, or otherwise providing your User Content to the Company, you grant the Company a world-wide, royalty-free, perpetual, irrevocable license to use, modify, display, reproduce and distribute your User Content in the course of your use of the Site and/or the Services. The Company will treat the User Content and Purchased Patterns of each User as confidential and proprietary to that User except as set forth in the relevant Subscription Agreement.
The Site also contains content owned by or licensed to the Company ("Company Content"). The Company owns and retains all rights in the Company Content including all intellectual property rights. The Company hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Company Content (excluding any software code) solely for your personal use to view the Site and otherwise as necessary to use the Services. Otherwise, you shall not copy, capture, reproduce, perform, transfer, sell, license, modify, manipulate, create derivative works from or based upon, republish, upload, edit, post, transmit, publicly display, frame, link, distribute, or exploit, in whole or in part, the Company Content. If you download any Company Content from the Site, you may not remove any copyright or trademark notices or other notices that accompany it or any image protection features including, but not limited to, graphic image watermarks. Except as set forth above, nothing contained in this Terms and Conditions of Use shall be construed as conferring by implication, estoppel or otherwise any license or right under any trade secret, patent, trademark, copyright or other intellectual property right of the Company or any third party. All licenses not expressly granted by the Company are reserved.
Prohibited User Conduct
You warrant and agree that, while using the Site and the Services, you shall not: (i) impersonate any person or entity, whether actual or fictitious, including any Company representative or misrepresent your affiliation with any other person or entity; (ii) insert your own or a third party's advertising, branding or other promotional material into any of the Content, or use, redistribute, republish or exploit such Content or the Service for any commercial or promotional purposes; or (iii) attempt to gain unauthorized access to other computer systems through the Site or the Services.
You also shall not: (i) engage in spidering, "screen scraping," "database scraping," harvesting of e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of users or other information from or through the Site or the Services, including without limitation any information residing on any server or database connected to the Site or the Services; (ii) obtain or attempt to obtain unauthorized access to computer systems, materials or information through any means; (iii) use the Site or the Services in any manner with the intent to interrupt, damage, disable, overburden, or impair the Site or the Services, including, without limitation, sending mass unsolicited messages or "flooding" servers with requests; (iv) use the Site or the Services in violation of the intellectual property or other proprietary or legal rights of the Company or any third party; or (v) use the Site or the Services in violation of any applicable law.
You further agree that you shall not attempt (or encourage or support anyone else's attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Site or the Services, or any Content, or make any unauthorized use thereof. You agree that you shall not use the Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party's use and enjoyment of the Site or any of the Services. You shall not obtain or attempt to obtain any materials or information through any means not intentionally made publicly available or provided for through the Site.
There are a number of proprietary logos, service marks, and trademarks (“Marks”) found on the Site, all of which are owned by, or licensed to, or otherwise authorized for use by the Company. By making them available on the Site, the Company is not granting you any license to utilize the Marks. You acknowledge and agree that you have no rights, title, or interest in or to the Marks and that you will not adopt, use, or attempt to register the Marks or any confusingly similar mark.
Infringement of Intellectual Property Rights
You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, or other proprietary materials without obtaining the prior written consent of the owner of the rights to such material. The Company may deny access to the Site or the Services any User who is alleged to infringe another party’s intellectual property rights including, but not limited to, rights of copyright and trademark. Without limiting the foregoing, if you believe that your rights of copyright have been infringed, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the location on the Site of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. The Company’s Copyright Agent for notice of claims of copyright infringement can be reached by mail at Copyright Agent, Image Terrain, Inc., 561 Washington Street, West Haven, CT 06516 U.S.A. and by electronic mail at CopyrightAgent@imageterrain.com.
Security of Electronic Transmissions
Internet transmissions are never completely private or secure. You understand that any message or information you send to this Site or through the Services may be read or intercepted by others, unless there is a special notice that a particular message is encrypted. Sending an e-mail message to the Company does not create any reciprocal obligation or responsibility of the Company to you.
Links to Other Websites
The Site may contain links to other Internet sites on the World Wide Web. The Company provides such links for your convenience only, and is not responsible for the content of any website linked to or from the Site. Links from the Site to any other website do not indicate that the Company approves of, endorses, sponsors, or recommends that website. The Company disclaims all warranties, express or implied, as to the accuracy, legality, reliability, or validity of any content on any other website.
Descriptions of Services
The Company attempts to provide accurate descriptions of all the Services. However, we do not warrant that these descriptions are complete or error-free.
Availability of Services
The Services may not be available in your particular country, state or locality. The reference to the Services on the Site does not imply or warrant that the Services will be available at any time in your particular location. Even where the Services are available, access and use may be limited based your method of electronically connecting to the Services and the security and data transmission rate of that connection. The Services will be unavailable for access each Sunday from 2:00 a.m. through 4:00 a.m. (Eastern U.S. Time) for maintenance. The Company reserves the right to alter, modify, add or discontinue completely any of the Services, temporarily or permanently, at any time, in its sole discretion, without notice and without liability.
Effectiveness of the Image Manipulation Service
The Company does not warrant that any Patterns created through use of the Image Manipulation Service are not confusingly similar to copyright-protected images or patterns of any third parties. The Company also does not warrant that any such Patterns will be commercially desirable or successful in or through any medium.
Right to Change These Terms and Conditions of Use
The Company may add to, change, or remove any part of these Terms and Conditions of Use at any time, without notice. Any changes to these Terms and Conditions of Use or any terms posted on the Site apply as soon as they are posted. By continuing to use the Site after any changes are posted, you are indicating your acceptance of and agreement to those changes.
You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorneys' fees, arising out of or in connection with your User Content, any Pattern you created through the Image Manipulation Service, any other access to or use of the Site, or any violation of this Terms and Conditions of Use or of any law or the rights of any third party.
Disclaimer of Warranties and Damages
YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR OWN RISK. THE SITE (INCLUDING ALL CONTENT AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE) IS PROVIDED "AS IS." TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, AND NON-INFRINGEMENT. FURTHERMORE, THE COMPANY DOES NOT WARRANT THAT THE SERVER THAT MAKES THE SITE OR THE SERVICES AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY INFECT, HARM, OR CAUSE DAMAGE TO YOUR COMPUTER EQUIPMENT OR ANY OTHER PROPERTY WHEN YOU ACCESS, BROWSE, DOWNLOAD FROM, OR OTHERWISE USE THE SITE OR THE SERVICES.
Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE COMPANY, ITS AGENTS OR SERVICE PROVIDERS, SHALL THE COMPANY, ITS AGENTS OR SERVICE PROVIDERS BE LIABLE FOR ANY CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES THAT RESULT FROM (A) THE USE OF, (B) THE INABILITY TO USE, OR (C) ERRORS OR OMISSIONS IN THE CONTENTS AND FUNCTIONS OF, THE SITE OR THE SERVICES, EVEN IF THE COMPANY OR ANY OF ITS AGENTS OR SERVICE PROVIDERS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF THE COMPANY, ITS AGENT OR SERVICE PROVIDERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) EXCEED $100.00.
These Terms and Conditions of Use, the relevant Subscription Agreement, and any additional terms posted on the Site together constitute the entire agreement between the Company and you with respect to your use of the Site and the Services. Any alleged claim or cause of action you may have with respect to your use of the Site or the Services must be commenced within one (1) year after the alleged claim or cause of action arises. If, for any reason, a court of competent jurisdiction finds any provision of these Terms and Conditions of Use, or any portion thereof, to be unenforceable, that provision or portion shall be deemed severable, and shall not affect the validity and enforceability of any remaining provision of these Terms and Conditions of Use. These Terms and Conditions of Use shall be governed by and construed in accordance with the laws of the State of Connecticut, United States of America, without reference to its conflicts of law rules. Furthermore, you agree and consent to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in the State of Connecticut.