TERMS OF SERVICE OF THE AGREEMENT (“TOS”) FOR THE USE OF frostynova.com and its services/products
For purposes of the TOS, the term “WE” or “US” shall mean
the webmaster(s), maker(s), creator(s), employee(s), researcher(s), office(s), director(s), affiliate(s), content writer(s), staff, licensor(s), sublicensor(s), agent(s), manager(s), administrator(s), liquidator(s), officer(s), servant(s), shareholder(s), subsidiary, subsidiaries, subcontractor(s) and/or related entities of frostynova.com.
For purposes of the TOS, the term “YOU” or “YOUR” shall mean
you, your heirs, agent(s), successor(s), assign(s) and/or person(s) acting on your behalf.
For purposes of the TOS, the term “FORUMS” shall mean
user-generated content areas including, but not limited to forums, chat rooms, guestbooks and/or message boards
For purposes of the TOS, the term “CONTENT” shall mean
the informational or personal or educational services like the display or processing of personalized content, information, web page(s) with hidden (e.g. meta tags) or broadly visible content, know-how, material, communication (e.g. via email or FORUMS), ideas, ad(s), concepts, programming code, techniques, database information, messages, link(s), software (e.g. compter programs, video, graphics, photographs, audio clips) and/or affiliate program(s).
For purposes of the TOS, the term “PROCESS” shall mean
to use, share, distribute, archive, store, reproduce, modify, adapt, publish, create derivative works, translate, publicly post, publicly perform and/or publicly display CONTENT (in whole or in part or in a searchable format) and to incorporate CONTENT into other works in any form, media, software or technology of any kind, whether now existing or developed in the future, online or offline, for any purpose whatsoever, including but not limited to developing, manufacturing and/or marketing products using CONTENT.
DESCRIPTION OF SERVICE
WE may provide YOU with access to a collection of interactive or non-interactive resources, including
* communications tools including, but not limited to, instant messaging, mobile messaging, email (including, but not limited to, electronic greeting cards)
* shopping services
* search services
* money services
* programming services, programs, software products
* data services
through frostynova.com or a network of properties which may be accessed through any various medium or device now known or hereafter developed (collectively “The Service”).
THE PARTIES OF THIS AGREEMENT; BASIC AGREEMENT; USE OF SERVICE
The TOS is by and between US and YOU. The TOS is made effective as of the date of electronic execution.
Using The Service (“USE”, “USING”) includes, but is not limited to, uploading of, participating in, accessing data from, interacting with or downloading of (as a whole or in parts) of CONTENT or otherwise using The Service.
By USING The Service YOU acknowledge that YOU have read, understand and agree to be bound by all the terms and conditions of the TOS irrevocably, unconditionally and without protest or notification. Each time YOU USE The Service YOU reaffirm YOUR acceptance of the then-current TOS.
WE may also offer other services that are governed by different or additional terms of service.
Unless explicitly stated otherwise, any new features that augment or enhance the current The Service, including the release of new properties of US, shall be subject to the TOS.
WE have the right to change, modify, add to or discontinue or retire any aspect or feature of The Service (at any time, for any reason or no reason at all, and without prior or later notice and without liability to YOU, to any other user or to any third party) including, but not limited to the CONTENT, hours of availability, equipment needed for access or use, the maximum disk space that will be allotted on the servers of US on YOUR behalf, either cumulatively or for any particular service.
YOU also understand and agree that the TOS may include advertisements and that these advertisements may be necessary for US to provide The Service.
WE do not collect any private information beyond the typical internetuser-webserver information or beyond publicly available information except where WE have YOUR consent.
WE do not rent or sell or share or give away YOUR personally identifying information to other companies or individuals, unless WE have YOUR consent.
If YOU have an account with US, WE may share the information submitted under YOUR account amongst all of our services in order to provide YOU with a seamless experience and to improve the quality of The Service. WE will not disclose YOUR account information to other people or companies, except in the limited circumstances described in the TOS or with YOUR consent.
WE may PROCESS personal information collected on our site in any country in which WE maintain business. By using The Service, YOU consent to the transfer of YOUR information amongst these countries, including those located outside YOUR country.
WE may share aggregated information with others. Examples of this include the “Number of users who performed a search for a special keyword” or “Number of users who clicked on a particular link”
WE may present links in a format that enables US to understand whether they have been clicked.
YOUR IP may be transferred to third-party services including, but not limited to, Google, Youtube, Facebook and Amazon, for the purpose of embedding content (including, but not limited to, usage statistics, ads, videos) on frostynova.com.
WE may store YOUR IP for the purpose of analysis of site usage or against acts which are illegal or objectionable or for error correction.
COMMUNICATION WITH US
If WE receive communication from you it will remain confidential and will not be reproduced without permission, except in the following circumstance: WE reserve the right to archive, copy, reproduce, redistribute and make derivative works of any communication, via electonic mail, postal mail, telephone (WE may record YOUR telephone calls to US), instant message or any other media, which is in our sole discretion, that
– harasses, threatens or is abusive to The Service or any CONTENT writer of The Service or any member of The Service
– is damaging to the reputation of The Service or any of US
– serves to vilify, defame or cast aspersions against The Service or any of US with the intent of interfering with business relationships, including, but not limited to, affiliations or service agreements (this includes ANY threatening letters to an ISP, Web host, etc., or allegations of activities in violation of applicable laws and/or service agreements).
– contains legal information (including, but not limited to (DMCA) copyright notices)
Any such material shall become the property of US. WE shall be the sole arbiter(s) of what constitutes a communication fitting the above descriptions. Upon receipt of any such communucation, or notification of receipt of any such communication by a party associated with The Service, WE reserve the right take to take action as necessary to protect rights and interests, with or without prior notice to the person(s) or group(s) responsible for said communication.
DISCLAIMER OF WARRANTIES
YOU expressly understand and agree that:
* YOUR USE of The Service is at YOUR sole risk. The Service is provided on an “as is” and “as available” basis. WE expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
* WE make no warranty that (i) The Service will meet YOUR requirements, (ii) The Service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the USE of The Service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by YOU through The Service will meet YOUR expectations, and (v) any errors in the software will be corrected. No part of The Service represents a commitment on the part of US in the future.
* Any CONTENT downloaded or otherwise obtained through the USE of The Service (including but not limited to software, links, content on external webpages, pictures) is done at YOUR own discretion and risk and that YOU will be solely responsible for any damage to YOUR computer system or loss of data that results from the download of any such material.
* If YOU establish an account with US then YOU are the responsible to keep the account login data (e.g. password(s)) safe.
* Any third-party material (including content of external webpages linked to by The Service) is presented solely for the purposes of education and furtherance of the knowledge of the reader. Any third-party material displayed or used by The Service remains the property of their respective owners. While methodology detailed herein could potentially be used maliciously or to facilitate activities which are unlawful, this is not the intent. WE do not condone the commission of unlawful acts: in particular, WE do not condone the use of any information presented herein to commit unlawful acts or for the furtherance of any unlawful activities.
* No advice or information, whether oral or written, obtained by YOU through or from The Service shall create any warranty not expressly stated in the TOS.
The above “DISCLAIMER OF WARRANTIES” is valid for links displayed by The Service. Moreover the following terms apply for clarification:
“LINKS” include, but are not limited to, text links, ad(s) with or without graphics (banners, flash movies etc), links generated by a database query, links added to the system by user input (e.g. in FORUMS), links generated by a “random link generator”, links manually added to frostynova.com by US.
LINKS to external webpages (= webpages outside of the domain of frostynova.com) may display content developed by people over whom WE exercise no control. WE do not necessarily scrutinize these pages before or after including a LINK to them. An external webpage may have content that some people find objectionable, inappropriate, or offensive. WE cannot assume responsibility for any external webpage nor do WE agree (express or implied) with its content. WE may even disagree with the content of external web pages.
The placement of a LINK at The Service does not mean WE intend to encourage YOU to visit the “linked to” webpage. WE don’t encourage YOU to use, take part in or believe anything an external webpage claims, offers or features.
An external webpage may change its content, promotions, rules, or regulations without any notice after WE have added a LINK to it. It is not guaranteed and WE cannot guarantee the accuracy of promises/statements of advertisements or LINKS that are displayed by The Service. The obligation is placed upon YOU to take the initiative and full responsibility to thoroughly investigate any offer, product or service which is displayed/advertised on The Service.
LIMITATION OF LIABILITY
YOU expressly understand and agree that WE shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if WE have been advised of the possibility of such damages), resulting from:
– the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from The Service;
– the USE or the inability to USE The Service
– access delays or interruptions to The Service
– failure to store any user communications or personalization settings
– data delivery or non-delivery or misdelivery between YOU and US
– events beyond our control (e.g. acts of God)
– unauthorized access to or alteration of YOUR transmissions or data
– statements or conduct of any third party on The Service;
– errors, omissions, misstatements, discrepancies, receipts, neglects, defaults or decisions
– deletion of, failure to store, or failure to process or act upon email messages
– processing of updated information to YOUR account data
– development or interruption of The Service
– errors taking place with regard to the processing of The Service
– any act or omission caused by YOU (whether authorized by YOU or not)
– any other matter relating to The Service or
– any relationship with US
WE shall not be responsible or liable for the accuracy, currentness, usefulness or availability of any information transmitted or made available via The Service, and shall not be responsible or liable for any decisions made based on such information.
Statements or comments provided on The Service are general information and are not intended express or implied to be a substitute for informed professional medical, psychiatric, psychological, tax, legal, health, investment, accounting, or other advice or care. Statements or comments provided on The Service are not evaluated or approved or supported by any official or federal agency. YOU should not use this information to diagnose, change, prevent, treat, delay, cure or reduce any problem or condition. Please consult an expert with any questions or concerns YOU might have regarding any condition or problem. WE make no express or implied representation, warranty or guarantee in connection with the information contained in and provided through The Service, including the appropriateness, accuracy, correctness, veractiy, value, sufficiency, timeliness or completeness of the data, methods or other information contained in and provided through The Service. WE do not endorse, and expressly disclaim liability for any product, manufacturer, distributor, service or service provider mentioned or any opinion expressed in statements or comments.
YOU should never assume in FORUMS that people are who they say they are, know what they say they know, or are affiliated with whom they say they are affiliated with, or are not affiliated with whom they say they are not affiliated with. Information obtained in FORUMS may not be reliable, and it is not a good idea to take any action, including to trade or make any investment decisions, based solely or largely on information YOU cannot confirm, verify or falsify.
Under no circumstances shall WE be liable to any user on account of that user’s USE or mis-USE of or reliance on The Service. Arising from any claim relating to the TOS or the subject matter hereof such limitation of liability shall apply to prevent recovery of direct, indirect, ideal, incidental, consequential, special, exemplary or punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise, (even if WE have been advised of the possibility of such damages). Such limitation of liability shall apply whether the damages arise from USE or mis-USE of and reliance on The Service, from inability to USE The Service, or from the interruption, suspension, or termination of The Service (including such damages incurred by third parties). This limitation shall also apply with respect to damages incurred by reason of other services or goods received through or advertised on The Service or received through any LINKS provided in The Service, as well as by reason of any information or advice received through or advertised on The Service or received through any LINKS provided in The Service. This limitation shall also apply, without limitation, to the costs of procurement of substitute goods or services, lost profits, or lost data. Such limitation shall further apply with respect to the performance or non-performance of The Service or any information or merchandise that appears on, or is linked or related in any way to, The Service. Such limitation shall apply notwithstanding any failure of essential purpose of any limited remedy and to the fullest extent permitted by law.
Given the nature of the internet and the volume of messages and postings, WE cannot and do not monitor all of the material posted or transmitted by users and third party information providers.
WE discourage divulging personal phone numbers and addresses or other information that can be used to identify or locate YOU. If YOU make such disclosures YOU do so fully understanding the consequences of such disclosures and with a knowing consent that such information could be used to identify YOU.
Without limiting the foregoing, under no circumstances shall WE be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
YOU agree that WE shall not be bound by any representations made by third parties who YOU may use to purchase services from US, and that any statements of a general nature, which may be posted on frostynova.com web pages or be contained in promotional materials, will not bind US. YOU will openly take the full burden and consequences for any harm. YOUR sole and exclusive remedy for dissatisfaction with The Service is to stop using The Service.
CIRCUMVENTING OR EXPLOITING SECURITY MEASURES
YOU may not enter parts of the web pages of frostynova.com by circumventing security measures, e.g. by making untrue statements/confirmations (e.g. confirming that YOU are 18 years of age or older if YOU are not 18 years of age or older), by re-registering under a non-banned username (or by using an anonymous account), by changing or cloaking IP addresses to evade an IP ban, by registering a new email account to evade an email ban and/or by exploiting security holes.
YOU may not disclose any vulnerabilities (= security holes of The Service) before first notifying US and waiting 1 week after having notified us.
MEMBERSHIP; UP TO DATE INFORMATION
Some parts of The Service may require YOU to register and provide personal or non-personal information such as name, e-mail address, gender, date of birth, zip code (the “Registration Information”). If YOU want to become a Member of US (= ‘register as a member’ = ‘open an account with US’ = ‘subscribe to services of US’ = (as explained at frostynova.com)) YOU are not authorized to register any person other than YOU as a Member or otherwise enter membership information regarding any person other than YOU. YOU are allowed, however, to enter profile information regarding third parties so long as YOUR USE and maintenance of such information does not violate the TOS or the legal rights of the third-parties. Furthermore, YOU also warrant and represent that all information YOU provide is true, current, complete, and accurate at the time YOU provide such information. YOU agree to notify US ten (10) business days when any of the information YOU provided as part of the application and/or registration for an account with US changes. It is YOUR responsibility to keep this information in a current and accurate status. Failure by YOU, for whatever reason, to provide US with accurate and reliable information on an initial and continual basis, shall be considered to be a material breach of the TOS. Failure by YOU, for whatever reason, to respond within ten (10) business days to any inquiries made by US to determine the validity of information provided by YOU, shall also be considered to be a material breach of the TOS. YOU agree to retain a copy for YOUR record of the receipt for any purchase made with US.
YOU agree that YOUR chosen username (also known as “user id” or “screen name” or “login” or “login name”) and YOUR user graphic (also known as “avatar”) complies with section “UNACCEPTABLE USE”. Moreover YOU may not
* use a screen name or an avatar of another person with the intention of impersonating that person
* use a screen name or an avatar that resembles the screen name or avatar of another user
* use a screen name or an avatar of anyone else without authorization
* use a screen name or an avatar in violation of the intellectual property rights of any person
* use a screen name or an avatar that WE consider in sole discretion as being inappropriate
SUSPENSION OF SERVICES; BREACH OF AGREEMENT; BANNING YOU; DELETING YOUR ACOUNT; TERMINATION OF MEMBERSHIP
YOU agree that, in addition to other events set forth in the TOS, YOUR ability to USE of The Service provided by US is subject to cancellation or suspension in the event there is an unresolved breach of the TOS and/or suspension or cancellation is required by any policy now in effect or adopted later by the TOS or third-party agreements.
YOU agree that YOUR failure to comply completely with the TOS may be considered by US to be a material breach of the TOS and that WE may provide YOU with notice of such breach either in writing or electronically (i.e. email). In the event YOU do not provide US with material evidence that YOU have not breached YOUR obligations to US within ten (10) business days, WE may terminate the relationship with YOU and take any remedial action available to US under the applicable laws. Such remedial action may be implemented without notice to YOU and may include, but is not limited to, terminating YOUR accounts and discontinuing The Service to YOU. No fees will be refunded to YOU because of a breach.
The failure of US to act upon or notify YOU of any event, which may constitute a breach, shall not relieve YOU from or excuse YOU of the fact that YOU have committed a breach.
WE may ban YOU from the USE of The Service. A ban of YOU may include, but is not limited to
* refuse to allow YOU access to one or some or all functions of The Service
* refuse to allow YOU to login to The Service
* refuse to allow YOU to view otherwise freely available CONTENT
Banning YOU may or may not include deleting your ACCOUNT and/or CONTENT submitted by YOU.
In the event WE delete an account of YOU used in association with spam or morally objectionable activities, no refund will be issued.
WE do not guarantee to cancel/delete/terminate YOUR account or CONTENT submitted by YOU, even if YOU demand it. WE may choose to continue to display any CONTENT submitted by YOU. WE may choose to keep YOUR account active even after banning YOU.
COUNTING USER ACTIONS
In case of counting incoming, outgoing, internal or website-internal hits, clicks or other user actions or interactions (collectively, “USER ACTIONS”) (e.g. for toplists) WE reserve the right to filter out (= not count, not accept) USER ACTIONS that are considered as illegitimate by US, for example USER ACTIONS made from certain IPs or from a browser that doesn’t have certain features (e.g. that doesn’t accept cookies) or from bots or automatic programs.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
WE do not claim ownership of CONTENT YOU submit or make available for inclusion on The Service (e.g. for guestbooks, discussion boards). However, with respect to CONTENT YOU submit or make available for inclusion on The Service YOU grant US the world-wide, royalty free, non-exclusive, perpetual, irrevocable and fully sublicensable right and license to PROCESS the CONTENT.
We may make all CONTENT YOU submit to US fully available to public search engines (e.g. Google, Yahoo, …), except where stated otherwise.
WE are not responsible for the similarity of any of the CONTENT in any media to materials or ideas transmitted to US. Should YOU send any unsolicited materials or ideas, YOU do so with the understanding no additional consideration of any sort will be provided to YOU, and YOU are waiving any claim against US regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the idea YOU sent.
YOU agree not to submit statements, questions or comments designed to elicit responses that relate to illegal activity or that infringe upon another party’s intellectual property rights.
WE do not edit, screen, filter, modify, or otherwise monitor the content of statements, questions or comments of user-submitted CONTENT in advance of initially posting or displaying such CONTENT on The Service.
RESTRICTION OF SERVICES; RIGHT OF REFUSAL; UNACCEPTABLE USE
Although WE will try to provide a wealth of publicly-accessible information, WE reserve the right to reject (= not publish) or to edit a user-submitted material for any reason or no reason at all, or to remove a user-submitted material which is vulgar, unlawful, useless, but WE have no obligation to review or remove any such material. WE reserve the right to refuse service to anyone at any time without notice for any reason and to remove objectionable or personally identifiable information.
YOU agree not to USE The Service or to allow or enable others, to USE The Service for one or more of the following purposes or in one of the following ways:
* Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “bulk email”, “bulk instant messages”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation, except in those areas that are designated for such purpose
* Repetitive, high volume inquires into The Service
* Damage, overburden, disable, impair The Service
* Interfere with or disrupt The Service or servers or networks connected to The Service, or disobey any requirements, procedures, policies or regulations of networks connected to The Service
* Commit acts which are illegal or morally objectionable. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, spread untruths, threaten, flame, slander or harass third parties or US or members of The Service; activities prohibited by the laws of the United States and/or foreign territories in which YOU conduct business; activities designed to encourage or advocate unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, libelous, vulgar, obscene, harassing, abusive, defamatory, invasive of the privacy of a third party, bigoted, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; and activities designed to harm minors in any way.
* Excessive overloading on the DNS system of US
* Server hacking or other perpetration of security breaches, mail bombing, internet packet flooding, packet corruption, or other abusive attacks
* Post excessive numbers of emoticons/smilies, large, small or coloured text, shouting text (= the use of CAPITAL LETTERS), use excessive punctuation (e.g. !!!!!! or ?????)
* Post, upload or otherwise make available any CONTENT that could be classified as bumping = whose only use is to mark a post thread as updated or upvalued
* Engage in FORUMS in antisocial, harassing, disruptive, or destructive acts, including “flaming”, “stalking”, “mobbing”, “spamming”, “flooding”, “trolling”, “snerting”, “griefing”, “leetspeaking” as those terms are commonly understood and used on the internet;
* Post, upload or otherwise make available any CONTENT not related to appropriate subject matters
* Post, upload or otherwise make available any CONTENT which is misleading to others
* Post, upload or otherwise make available any CONTENT that YOU do not have a right to post and transmit under any law or under contractual relationships;
* Post, upload or otherwise make available any CONTENT, such that such posting, uploading, or transmission constitutes the infringement of any patent, trademark, trade secret, copyright or other proprietary rights of any party
* Post, upload or otherwise make available any materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment
* Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of The Service are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges
* Forge headers or otherwise manipulate identifiers in order to disguise the origin of any CONTENT transmitted through The Service;
* Collect or store personal data about other users in connection with the prohibited conduct and activities set forth in the paragraphs above
* WE shall be the sole judge about what represents an illegal USE of The Service of US. YOU are bound and will submit to OUR assessment.
CHOICE OF LAW AND FORUMS
The TOS and the relationship between YOU and US shall be governed by the laws of the county/province the majority of the management of US is operating from without regard to its conflict of law provisions. YOU and WE agree to submit to the personal and exclusive jurisdiction of the courts located within the area of the majority of the operational management of US.
TRADEMARKS AND DOMAIN NAMES
* YOU agree not to use in any manner any trademark(s) or service mark(s) or logo(s) of US or product name(s) or service name(s) which are trademarks of US without prior permission of US.
* All products, services, trademarks mentioned are properties of their respective companies or organizations.
* By the USE of The Service YOU waive any and all claims regarding OUR trademarks or domain names that we use.
INDEMNITY AND LEGAL USE
* YOU agree to release, defend, indemnify and hold harmless US and the contractors, agents, shareholders and affiliates of US from and against any and all losses, defamations, trade disparagements, privacy or intellectual property infringements, damages, misfortunes, problems, unexpected happenenings or costs (including attorney or court fees) resulting from any claim, action, proceeding suit or demand arising out of or related to the USE of The Service (including but not limited to YOUR agents, affiliates or anyone using YOUR account with US whether or not on YOUR behalf, and whether or not with YOUR permission). Should WE be notified of a pending law suit, or receive notice of the filing of a law suit, WE may seek a written confirmation from YOU concerning YOUR obligation to indemnify US. YOUR failure to provide such a confirmation may be considered a breach of the TOS.
* YOU agree to waive any right you may have to commence or participate in any class action suit or proceeding or law suit against US arising out of or relating to the USE of The Service. YOU also agree to opt out of any proceeding, class proceeding or law suit against US.
* YOU accept that frostynova.com is a free speech zone and a censor free zone. By YOUR USE of The Service you accept that there is no recourse and no appeal for damages caused by slander, potential slander, libel, potential libel, critique, criticism, discussion, evaluation, invalidation, needlessly inflammatory or abusive language, failure to substantiate allegations or other expressions, whether in writing or other CONTENT. Just like a boxer cannot seek recourse for pain suffered from a competition, YOU cannot seek recourse for damages caused by YOUR USE of The Service.
* YOU may not USE The Service if the USE is illegal or prohibited or infringes YOUR local, state national or international law, rule, regulation or right of the political area or geographical area or country in which YOU reside.
EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to YOU.
NO THIRD PARTY BENEFICIARIES
YOU agree that there shall be no third party beneficiaries to the TOS.
NO AUTOMATED QUERYING; NO AUTOMATED DATABASE QUERYING; MEANS OF QUERY INPUT; NO SCRAPING; NO OBFUSCATING
YOU may not retrieve or scan or fetch or extract or parse the data from the www portion of frostynova.com by any data mining, data gathering or extraction method, including robots, spiders, bots, agents, or any other such software (collectively, “Datamining Software”) or manually and reformat the data and publish/display/distribute them or embed them into YOUR website(s) or service(s) or intranet(s) or extranet(s). This restriction does not apply if YOU are a public search engine for www websites (e.g. Google, Yahoo, …) that links to frostynova.com along with the search results.
* Searches of the database(s) made available via The Service are carried out by YOUR input of search information containing data to be compared against the contents of the database(s). The only permissible means of query input is manual keyboard entry except for users who must use some other form of data input due to a physical disability.
* Under no circumstances may YOU utilize Datamining Software or application designed to perform multiple or repeated searches/queries of the database(s) of US by circumventing the need for manual entry at frostynova.com.
* YOU agree that YOU will not modify, copy, distribute, process, make available, transmit, translate, display, perform, reproduce, publish, license, sub-licence, create derivative works from, use on any other web site, transfer or sell any information, software, lists of information provided through or obtained from The Service whether or not for payment or other consideration. This means, among other activities, that YOU agree not to engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or lists of other information.
* YOU may not display/embed parts of frostynova.com while obfuscating (= cloaking frostynova.com’s logos, copyright notices etc).
YOU agree that no joint venture, partnership, employment or agency relationship exists between YOU and US as a result of the TOS or USE of The Service.
NO REVERSE ENGINEERING
YOU may not decompile or disassemble or reverse engineer any part of The Service.
THIRD-PARTY SERVICES CHANGE OF TERMS OF SERVICE
The Service relies on third parties (ISPs, banks, clearing services, etc). The third parties may retire or alter or stop or apply parts of their services or some of their terms of service in such a way that WE have to stop The Service or a part of The Service. Anyone who uses any of The Service may stop to receive commission payouts thereafter if commission payouts are due. Sorry, not the fault of US.
A number of commercial services, such as financial and contractor services, may be offered by third parties through frostynova.com. YOU acknowledge that by permitting such services to be offered through frostynova.com, WE are acting as a passive conduit for the transmission to such third parties of any information related to such services that YOU submit to US.
GENERAL TERMS; MODIFICATIONS OF THE TOS; ENTIRETY
Unless otherwise specified herein, the TOS constitute the entire agreement between YOU and US and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between YOU and US. Any waiver of any provision of the TOS will be effective only if in writing and signed by US. Additional terms and regulations may apply for certain areas of The Service (e.g. discussion boards, game sections etc).
A printed version of the TOS and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
WE may change the TOS from time to time. Review the TOS from time to time so that YOU will be apprised of any changes. Prior versions of the TOS will be not kept in an archive for YOU to view. YOU agree to be bound by any changes WE may reasonably make to the TOS when such changes become effective. Should YOU elect to discontinue USE of The Service YOU will not receive a refund for any fees YOU may have paid to US. The modified TOS will be effective immediately upon posting and YOU agree to the new posted TOS by continuing YOUR USE of The Service. If YOU do not agree with the modified TOS, YOUR only remedy is to discontinue to USE The Service and cancel YOUR registration/membership if any.
YOU responsible for obtaining access to The Service and that access may involve third party fees (such as Internet service provider or airtime charges). YOU are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, YOU must provide and are responsible for all equipment necessary to access The Service.
Delinquent payments shall bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the due date until paid in full. YOU will be responsible for all reasonable expenses (including attorneys’ fees) incurred by US in collecting unpaid or delinquent amounts. All payments due are in Euro unless otherwise agreed by US in writing.
CONTENT YOU submit or correspondence YOU between YOU and other users of The Service do not form the basis for a professional-client relationship, including but not limited to attorney-client, physician-patient, or therapist-patient and are not subject to standards or requirements of confidentiality and/or privilege associated therewith.
In consideration of YOUR USE of The Service, YOU represent that YOU are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction.
CHILDREN AND The Service
WE are concerned about the safety and privacy of all users of US, particularly children. The Service is designed to appeal to a broad audience. For this reason, if YOU are the parent of a child under the age of 13 whom YOU want to allow access to The Service YOU must fax to US a written statement that allows such acces and identifies YOU and YOUR child. YOU must certify that YOU are at least 18 years old and that YOU are the legal guardian of the child/children. The Service is designed to appeal to a broad audience. As the legal guardian, it is YOUR responsibility to determine whether The Service and/or CONTENT are appropriate for YOUR child.
STATUTE OF LIMITATIONS
YOU agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to USE of The Service or the TOS must be filed within one (1) week after such claim or cause of action arose or be forever barred.
YOU agree that the TOS are severable. If for any reason a court of competent jurisdiction finds any provision or portion of the TOS to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the TOS shall continue in full force and effect.
OUR failure to act with respect to a breach by YOU or others does not waive OUR right to act with respect to subsequent or similar breaches. The failure of US to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision.
OUR failure to exercise or enforce any right under the TOS shall not be deemed to be a waiver of any such right or operate to bar the exercise or enforcement thereof at any time or times thereafter.
The section headings and subheadings and new lines contained in the TOS are included for convenience only, and shall not limit or otherwise affect the terms of the TOS.
Typographical errors shall not limit or otherwise affect the terms of the TOS.
WE will not be responsible or liable for the exercise or non-exercise of OUR rights under this Agreement.
ELECTRONIC DELIVERY POLICY
WE, as an online business, transact and communicate with others electronically. When YOU USE The Service, YOU consent to receive electronically from US any privacy or other notices, agreements, newsletters, disclosures, administrative messages, reports, documents, announcements, communications, or other records (collectively, “Notices”). YOU agree to accept notices or communication electronically. An electronically transmitted Notice shall have the same legal binding power as a Notice written on paper. YOU agree that WE generally can send YOU electronic Notices in either or both of the following ways: (1) to the e-mail address that YOU provided to US during registration or (2) WE may post Notices within a function of The Service. YOU agree that certain services may also have their own Notice procedure. YOU must check YOUR designated e-mail address regularly for Notices. YOU must have a personal computer connected to the internet in order to access Notices. YOU will need a printer to print any Notices. The delivery of any Notice from US is effective when sent by US, regardless of whether YOU read the Notice when YOU receive it or whether YOU actually receive the delivery. YOUR only method of withdrawing consent to receive Notices electronically is to terminate any subscriptions, services or other products provided under the TOS.
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