this web page is a legal document
(“Agreement”) between you (“the SUBSCRIBER”) and VIRTUAL SHAPING, INC.
(“CORPORATION”). THis Agreement states the terms and conditions under which you
may use the Virtual Shaping Server and Desktop Platform and web site. please read this agreement carefully before
accessing and using the Virtual Shaping Server and Desktop Platform and web
site. By using and accessing the Virtual Shaping Server and Desktop Platform web site you indicate that you have read and
understand this Agreement and agree to be bound by this agreement. if you do
not accept this Agreement, do not access and use the Virtual Shaping Server and
Desktop Platform and web site. Virtual shaping, INc. may revise this agreement
at any time without notice by updating this Agreement. You should visit this
web page periodically to review the agreement.
TERMS AND CONDITIONS
These Terms and Conditions (“Agreement”) are made as
of the Effective Date by and between Virtual Shaping, Inc., a California
corporation with offices located at 1990 N California Blvd, 8th Fl, Walnut Creek, CA 94596,
(“Corporation”) and the Subscriber, as defined hereunder.
WITNESSETH
WHEREAS,
Corporation has developed and owns that certain Virtual Shaping Server and
Desktop Platform (as defined hereinafter) for use and access by Subscriber via
the Internet; and
WHEREAS,
Subscriber desires to access and use the Virtual Shaping Server and Desktop
Platform in accordance with the terms and provisions of this Agreement;
NOW,
THEREFORE, in consideration of the mutual benefits of the covenants and
restrictions herein contained, Subscriber and Corporation hereby agree as
follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 -- Definitions: The following definitions shall apply:
(1) Access: The term “access” and variants thereof (including, without limitation, “accessing” and “accessible”) shall mean to store data in, retrieve data from or otherwise approach, display, reproduce, frame, establish a Link to, or make use of (directly or indirectly) through electronic means or otherwise.
(2) Virtual Shaping Server and Desktop Platform: The term “Virtual Shaping Server and Desktop Platform” shall mean that certain Web Site referred to as the Virtual Shaping Server and Desktop Platform, which is located on the Internet at http://www.virtualshaping.com, including any and all Corporation Technology used, incorporated, stored or accessible therein, as implemented on the Corporation System and made accessible to Subscriber through the Internet using a variety of means including but not limited to Virtual Private Networking, Remote Desktop, and through the use of the Password.
(3) Effective Date: The term “Effective Date” shall mean the date the Subscriber receives the Password from Corporation or accesses the Virtual Shaping Virtualization Platform, whichever occurs first.
(4) Corporation Marks: The term “Corporation Marks” shall mean trademarks, trade names, service marks and trade dress of Corporation and parent companies, subsidiaries and affiliates of Corporation, including, without limitation, the Virtual Shaping Server and Desktop Platform.
(5) Corporation System: The term “Corporation System” shall mean computer systems and communication equipment used for hosting the Virtual Shaping Server and Desktop Platform and providing Subscriber access to the Virtual Shaping Server and Desktop Platform .
(6) Corporation Technology: The term “Corporation Technology” shall mean any and all Technology developed by or for Corporation
(7) Internet: The term “Internet” shall mean that certain global network of computers commonly referred to as the Internet, including (without limitation) the world wide web.
(8) Licensed Content: The term “Licensed Content” shall mean third party Technology incorporated in whole or part into the Virtual Shaping Server and Desktop Platform.
(9) Link: The term “Link” shall mean text, icons, graphic symbols that upon selection or activation, link or associate to, execute, access or retrieve an off-screen Web Site or Technology.
(10) Password: The term “Password” shall mean that certain password and SUBSCRIBER name assigned by Corporation to Subscriber for accessing the Virtual Shaping Server and Desktop Platform as may be modified from time to time as provided hereunder.
(11) Policy Statement: The term “Policy Statement” shall mean those certain written statements of policies (in printed or electronic form) concerning access to the Virtual Shaping Server and Desktop Platform as may be adopted by Corporation and as modified by Corporation from time-to-time.
(12) Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. §1839.
(13) Subscriber: The term “Subscriber” shall mean the individual or entity assigned the password used to access the Virtual Shaping Server and Desktop Platform.
(14) Technology: The term “Technology” shall mean information, data, ideas, works of authorship, computer software, source code, object code, executable code, software libraries, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interfaces, interface designs, screen displays, Web Sites, web pages, Links, visual works, graphic images, audio, video, compilations, formulas, methodologies, techniques, processes, procedures, adaptations, derivative works, computers, hardware, peripherals, components, networks, product lists, supplier lists and customer lists.
(15) Term: The term “Term” shall mean a period of time starting on the Effective Date and ending on the date either party cancels the Password as provided hereunder.
(16) Unauthorized Access: The term “Unauthorized Access” shall mean any access to Virtual Shaping Server and Desktop Platform except for access during the Term for the exclusive purpose of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Virtual Shaping Server and Desktop Platform using the Password on behalf of Subscriber in accordance with this Agreement.
(17) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the Virtual Shaping Server and Desktop Platform except for Subscriber and employees and agents of Subscriber authorized by Subscriber to access the Virtual Shaping Server and Desktop Platform for purposes of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Virtual Shaping Server and Desktop Platform during the Term using the Password on behalf of Subscriber in accordance with this Agreement.
(18) Web Site: The term “Web Site” shall mean that certain multimedia interactive product which is a compilation of data, information, computer software, graphics, audiovisual, components and coding formatted for use on the world-wide-web of the Internet and commonly referred to as a web site.
Section
2.01 -- Access: Corporation hereby
grants Subscriber a non-exclusive, non-transferable and revocable license to
access the Virtual Shaping Server and Desktop Platform, during the Term, solely
for viewing, browsing, retrieving, uploading and posting information, and
ordering products on or through the Virtual Shaping Server and Desktop Platform,
subject to the terms and provisions of this Agreement.
Section 2.02 -- Policy Statement: During the Term, Subscriber shall comply with the Policy Statement. Corporation may modify the Policy Statement from time to time at the exclusive discretion of Corporation
Section 2.03 -- Password: Subscriber hereby accepts responsibility for, and shall be liable for, all access to the Virtual Shaping Server and Desktop Platform in connection with the Password. Subscriber shall be responsible for the confidentiality of the Password. Modification of the Password shall be subject to the approval of Corporation
Section 2.04 -- Unauthorized Access: Subscriber shall prevent Unauthorized Users from
accessing the Virtual Shaping Server and Desktop Platform. Subscriber
shall prevent Unauthorized Access to the Virtual Shaping Server and Desktop
Platform.
Section 2.05 -- Cancellation: Corporation may cancel the Password, for
convenience and in the exclusive discretion of Corporation, upon providing
written notice of such cancellation to Subscriber in accordance with Section
5.06 of this Agreement. Subscriber may cancel the Password, for convenience and
in the exclusive discretion of Subscriber, upon providing written notice of
such cancellation to Subscriber in accordance with Section 5.07 of this
Agreement. Upon cancellation of the Password, Subscriber shall immediately
cease and desist any and all access to and attempts to access the Virtual
Shaping Server and Desktop Platform.
ARTICLE III:
INTELLECTUAL PROPERTY
Section 3.01 -- Ownership and Title: Title to the Virtual Shaping Server and Desktop Platform (excluding Licensed Content), including ownership rights to any and all patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Corporation
Section 3.02 -- Unauthorized Use: Subscriber shall not copy or download the Virtual Shaping Server and Desktop Platform without the prior written consent of Corporation Subscriber shall not access, modify, reverse engineer, reproduce, display, perform or distribute, including (without limitation) by framing or similar means, the Virtual Shaping Server and Desktop Platform without the prior written consent of Corporation Subscriber shall not (directly or indirectly) promote, advertise, market or provide any Web Site similar to or competitive with the Virtual Shaping Server and Desktop Platform.
Section 3.03 -- Trademarks: Corporation shall retain all rights, title and ownership interests in the Corporation Marks and goodwill associated therewith. Subscriber acknowledges that, excepting the Corporation Marks, all other product, service and company names mentioned in the Virtual Shaping Server and Desktop Platform may be trademarks of their respective owners.
Section 3.04 -- Proprietary Information: Subscriber shall hold Corporation Technology in strict confidence and shall not access or disclose Corporation Technology except as otherwise permitted under this Agreement. Subscriber hereby acknowledges and agrees that the Corporation Technology derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements.
Section 3.05 -- No Contest: Subscriber shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of Corporation in connection with the Virtual Shaping Server and Desktop Platform.
Section 3.06 -- Subscriber Submissions: Any Technology (except the Password and ordering information) uploaded, posted or submitted by Subscriber on the Virtual Shaping Server and Desktop Platform shall be deemed non-confidential. Subscriber hereby grants Corporation an irrevocable, worldwide, perpetual, nonexclusive license to access, use, reproduce, modify, adapt, release, perform, display, distribute, sell and disclose such Technology, in whole or in part, in any manner and for any purpose whatsoever, and to have and authorize others to do so. Subscriber represents and warrants that Subscriber possesses all necessary rights, title and interests to rightfully grant Corporation the foregoing license, free and clear of any encumbrances, third party interests and restrictions. Subscriber also represents and warrants that all information provided by Subscriber in connection with the Virtual Shaping Server and Desktop Platform and this Agreement is true, complete and accurate.
ARTICLE IV:
WARRANTY AND INDEMNIFICATION
Section 4.01 -- Express Warranties:
Subscriber hereby acknowledges and agrees that Corporation (including
officers, employees, agents, directors and independent contractors of
Corporation has not made or granted to Subscriber any express warranties
concerning the Virtual Shaping Server and Desktop Platform or any
products and services offered through the Virtual Shaping Server and Desktop
Platform. Subscriber hereby acknowledges
that the Virtual Shaping Server and Desktop Platform does not constitute grant
of an express warranty concerning any products and services offered
through the Virtual Shaping Server and Desktop Platform and Subscriber hereby waives any and all claims of warranty based on
the Virtual Shaping Server and Desktop Platform.
SECTION 4.02 -- WARRANTY
LIMITATION: THE
VIRTUAL SHAPING SERVER AND DESKTOP PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. CORPORATION, TO THE
FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES
ALL WARRANTIES BY CORPORATION, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY
RIGHTS IN CONNECTION WITH THE VIRTUAL SHAPING SERVER AND DESKTOP
PLATFORM AND PRODUCTS AND SERVICES OFFERED THROUGH THE VIRTUAL SHAPING SERVER
AND DESKTOP PLATFORM. CORPORATION DOES NOT WARRANT AND
SUBSCRIBER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE VIRTUAL
SHAPING SERVER AND DESKTOP PLATFORM BY SUBSCRIBER WILL BE UNINTERRUPTED OR
ERROR FREE. CORPORATION DOES NOT MAKE ANY WARRANTY AND SUBSCRIBER HEREBY WAIVES
ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE VIRTUAL
SHAPING SERVER AND DESKTOP PLATFORM OR AS TO THE ACCURACY, COMPLETENESS,
TIMELINESS OR RELIABILITY OF THE VIRTUAL SHAPING SERVER AND DESKTOP PLATFORM.
SUBSCRIBER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET AND VIRTUAL
SHAPING SERVER AND DESKTOP PLATFORM SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF
SUBSCRIBER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES,
REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE
INTERNET AND THE VIRTUAL SHAPING SERVER AND DESKTOP PLATFORM.
Section 4.03 -- Inaccuracies: Subscriber
hereby acknowledges that the Virtual Shaping Server and Desktop Platform may
contain errors, inaccuracies and omissions. Subscriber shall assume any and all
risk of loss, harm or damage associated with Subscriber access to and use of
the Virtual Shaping Server and Desktop Platform.
Section 4.04 -- Limitation of Liability:
Corporation shall not be liable for any lost profits or consequential,
exemplary, incidental or punitive damages (including, without limitation, in
connection with (i) use, performance or operation of the Virtual Shaping Server
and Desktop Platform; (ii) use, performance or operation of the Internet or use
of the Internet by Subscriber; (iii) loss of data; AND (IV) PRODUCTS AND
SERVICES OFFERED THROUGH THE Virtual Shaping Server and Desktop Platform), regardless of the form of action, whether
in contract or in tort, including negligence, AND regardless of whether
Corporation has been advised of the possibility of such damages in advance or
whether such damages are reasonably foreseeable.
Section 4.05 -- Limitation of Damages: the
sole remedy of subscriber for any reason and for any cause of action whatsoever
in connection with this agreement, the Virtual Shaping Server and Desktop
Platform, and products and services offered through the Virtual Shaping Server
and Desktop Platform, regardless of the form of action, whether in contract or
in tort, including negligence, shall be modification of the Virtual Shaping
Server and Desktop Platform, as determined by Corporation.
Section 4.06 -- Indemnification:
Subscriber shall release, defend, indemnify and hold harmless
Corporation (including its officers, directors, employees, affiliates,
contractors and agents) from and against any expense, loss, cost or liability
(including, without limitation, attorney fees and paralegal fees) arising from
any and all claims, demands, damages or actions resulting from or related to
(i) use by Subscriber of the Internet, Virtual Shaping Server and Desktop
Platform or products or services offered through the Virtual Shaping
Server and Desktop Platform (including,
without limitation, any claims for breach of warranty, loss of data, libel,
slander, invasion of privacy or false advertising); (ii) performance of the Virtual
Shaping Server and Desktop Platform; (iii) Subscriber’s negligence or any
tortious acts (or failures to act) of Subscriber; (iv) products or services
offered through the Virtual Shaping Server and Desktop Platform; and (v) any
breach by Subscriber of the obligations of Subscriber under this Agreement.
Section 4.07 -- Export Assurance: Subscriber shall not perform any act in conflict with or in violation of the export laws and regulations of the United States of America, including (without limitation) the Export Administration Act, 50 U.S.C. §2401, et seq., the Export Administration Regulations, 15 C.F.R. Parts 730-774, the Arms Export Control Act, 22 U.S.C. §2751, and the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130, as amended.
Section 4.08 -- Links: Subscriber hereby acknowledges that the Virtual Shaping Server and Desktop Platform may contain Links to third party Web Sites. Any such Links are provided solely as a convenience to Subscriber and do not constitute an endorsement by Corporation of such Web Sites and the third party content therein.
ARTICLE
V: MISCELLANEOUS
Section 5.01 -- Entire Agreement: This Agreement contains the entire understanding of the parties relating to the subject matter hereof and supersedes all previous verbal and written agreements between Corporation and Subscriber relating to the subject matter hereof.
Section 5.02 -- Amendments and Modifications: Excepting modifications made to the Policy Statement by
Corporation and modifications made to this Agreement by Corporation, any
alteration, modification or amendment of this Agreement shall be void unless
such alteration, modification or amendment is in writing and signed by an
authorized representative of Corporation
Section 5.03 -- Severability: If a
provision of this Agreement is rendered invalid, the remaining provisions shall
remain in full force and effect.
Section 5.04 -- Captions: The
headings and captions of this Agreement are inserted for convenience of
reference and do not define, limit or describe the scope or intent of this Agreement
or any particular section, paragraph, or provision.
Section 5.05 -- Governing Law: This Agreement shall be governed by the laws of the state of California, without regard to any rules of conflict or choice of laws which may require the application of laws of another state, and venue shall be Contra Costa County, California.
Section 5.06 -- Subscriber Notice: All notices to Subscriber shall be in writing.
Notices to Subscriber shall be deemed delivered when posted conspicuously on
the Virtual Shaping Server and Desktop Platform or when delivered to Subscriber
electronically, by commercial overnight delivery service, by Certified or
Registered Mail - Return Receipt Requested - or by hand. Notices to Subscriber
shall be deemed given when dispatched. Notices posted conspicuously on the Virtual
Shaping Server and Desktop Platform or delivered to Subscriber electronically
(including, without limitation, electronic mail) shall be deemed written
notices.
Section 5.07 -- Corporation Notice: All notices to Corporation shall be in writing.
Notices to Corporation shall be deemed delivered when delivered by commercial
overnight delivery service, Certified or Registered Mail - Return Receipt
Requested - or by hand to the address set forth below for Corporation. Notices to Corporation shall be deemed given
on the date notice is received by Corporation (as evidenced in the case of
Certified or Registered Mail by Return Receipt).
Corporation Address
Virtual Shaping, Inc. 1990 N California Blvd, 8th FL
Walnut Creek, CA 94596
Section 5.08 -- Pronouns/Gender: Pronouns
and nouns shall refer to the masculine, feminine, singular or plural as the
context shall require.
Section 5.09 -- Remedies: All remedies under this Agreement are in addition
to equitable remedies and remedies provided by law and are cumulative. The parties hereby acknowledge and agree that
damages at law will be an inadequate remedy to Corporation In addition to
remedies at law and other rights which may be available, Corporation shall have
the right of specific performance, injunction or other equitable remedy
(including, without limitation, the right to such equitable remedies prior to
or pending arbitration) in the event of a breach or threatened breach of this
Agreement by Subscriber.
Section 5.10 -- Waiver: Waiver of
a breach of this Agreement shall not constitute a waiver of any other breach.
Failure to enforce any provision of this Agreement shall not constitute a
waiver or create an estoppel from enforcing such provision. Any waiver of a
provision of this Agreement shall not be binding unless such waiver is in
writing and signed by the waiving party.
Section 5.11 -- Survival: The terms and provisions of Sections 2.04 and
2.05 and Articles I, III, IV and V of this Agreement shall survive cancellation
of the Password.
Section
5.12 -- Public Announcements: All
public announcements concerning the Virtual Shaping Server and Desktop Platform or the
relationship of Subscriber and Corporation shall be subject to the prior
written approval of Corporation
Section 5.13 -- Arbitration: Any
controversy or claim arising out of or relating to this Agreement, or breach
thereof, shall be settled by arbitration in accordance with the Arbitration
Rules of MyTechnologyLawyer.com in Orinda, California. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by
the parties in accordance with the Arbitration Rules of MyTechnologyLawyer.com. Each party shall have the right of discovery
as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be
administered by MyTechnologyLawyer.com.
Section 5.14 -- Litigation Expense: In the
event of litigation or arbitration arising out of or relating to this
Agreement, each party shall pay its own costs and expenses of litigation or
arbitration (excluding fees and expenses of arbitrators and administrative fees
and expenses of arbitration).