© 2014 Ascentive LLC, 50 S. 16th Street Suite 3575 Philadelphia, PA 19102 USA.
All rights reserved.
Ascentive's inclusion of Third Party Material (as defined below) on the Site shall not be construed as Ascentive's endorsement of any third party or the Third Party Material, and no rights or licenses are granted to you in the Third Party Material. You agree to defend and hold Ascentive harmless from any and all liability that may result from your use of the Third Party Material.
1. INTELLECTUAL PROPERTY
The information on the Site is protected by copyright. Except as specifically permitted, no portion of the Site may be distributed or reproduced by any means, or in any form, without Ascentive's prior written consent.
"Ascentive" is a trademark of Ascentive LLC. Any trademarks, trade names, trade dress, service marks, logos, domain names, and URLs (collectively, the "Marks") provided in the Material or displayed on the Site are the property of Ascentive or third parties, and no right to use such Marks is granted to you herein.
This Site may include content owned or licensed by third parties, as well as links to websites owned by third parties (singularly and collectively, "Third Party Material").
2. USE OF MATERIALS AND SOFTWARE
Ascentive hereby grants you a personal, non-exclusive, non-assignable, non-sublicensable and non-transferable license to use and display, for non-commercial and personal use only, one copy of the Material that you download from the Site, except as may otherwise be expressly provided on our Site (and not to include licenses to Software (as defined below)). You shall not otherwise reproduce, modify, distribute, transmit, post, or publish (including, without limitation, display and distribution via a third party website), the Material without Ascentive's prior written consent. Except as expressly set forth herein, nothing contained herein shall be construed as conferring by implication, estoppel, or otherwise any license or right under any patent, trademark or copyright of Ascentive or any third party. You agree that the copy of the Material shall retain all copyright, trademark and other proprietary notices in the same form and in the same manner as such notices appear on the Material or on the Site.
You understand and agree that the Material is provided hereunder "AS IS" without warranty of any kind and that your use of the Material is at your sole discretion and risk. You shall be solely responsible for any damage to your network, software, computer system or mobile device and any loss of data that may result from your use of the Site and/or the Material.
The software and accompanying documentation available to download from the Site, a mobile application “store” or otherwise made available by, or on behalf of, Ascentive (the "Software") are the copyrighted and possibly patented work and property of Ascentive. Use of the Software is governed by the terms of the End-User License Agreement ("EULA") and/or the Software Purchase Agreement (the "Software Purchase Agreement"), which accompany such Software. If no license accompanies the download of Software, the terms of the license that accompanied the original Software product being updated will govern. You will not be able to use, download, or install any Software unless you agree to the terms of such EULA. If there is any conflict between the terms set forth herein, on the one hand, and the terms set forth in the EULA and/or the Software Purchase Agreement, on the other hand, the terms set forth in the EULA and the Software Purchase Agreement shall control.
Creative materials for any international product that are rendered to users with the intent of marketing any product are not applicable for users who are current residents or citizens of the United States.
Live Support 365 Additional Terms:
You may initiate the Live Support 365 free diagnosis over the telephone, through the Ascentive website or other means made available by Ascentive. The Live Support 365 free diagnosis can also be offered from Ascentive’s applications and after the purchase of our applications when a user calls to activate the application that user has purchased.
During the Live Support 365 free diagnosis Ascentive will download software to analyze your computer or device and also take control of your computer or device for the purpose of checking your system settings to see if they are optimal (the “Analyzing Software”). The Analyzing Software or technician may not be able to detect all potential problems or threats affecting your computer or device. You acknowledge that results may vary dependent on what condition or issue is actually limiting a particular computer or device and may require more than one product download for remedy. Ascentive uses the Analyzing Software and the information it provides solely to attempt to diagnose and resolve existing and potential problems. Ascentive uses reasonable efforts to limit the Analyzing Software's access to personal information on your computer or device. However, you agree that, while providing services, Ascentive may gain access to information on your computer or device that you deem to be personal or private. You agree that Ascentive has no liability for accessing or transmitting to Ascentive’s servers any information on your computer or device.
Not all items that the 365 Live Support representatives show you during the free diagnosis will impact your computer or device performance, security or stability and your results may vary dependent on what is actually limiting a particular computer or device.
The Live Support 365 service is provided only by phone, Internet chat and remote desktop sharing. An Internet connection must be provided by you so that you can receive the Live Support 365 service. By your use of the Live Support 365 service you acknowledge and agree that you give permission to Ascentive at all relevant times to access and control your computer(s) and/or device(s) for the purposes of diagnosis, service and repair. You authorize Ascentive to configure your computer(s) and/or device(s) and delete the files that Ascentive deems unnecessary, in its sole discretion, to the operation of your computer or device. You give Ascentive express permission to alter the registry of any computer or device on which the Live Support 365 service is performed. You acknowledge that the Live Support 365 service may require additional software. You give Ascentive permission to install, configure and use additional software on your computer(s) and device(s) in connection with the Live Support 365 service.
In some cases, Live Support 365 may not be able to diagnose or fix a problem occurring on your computer or device.
Ascentive reserves the right to refuse to troubleshoot hardware or software not on its list of supported products. You understand and agree that technical problems may be the result of software or hardware errors not yet resolved by the applicable product manufacturer, and that Live Support 365 technicians may not have the ability to obtain, or otherwise be aware of, the information necessary to resolve the relevant issue(s).
Subscribers are entitled to unlimited number of telephone and online "technical" support requests during the Live Support 365 subscription period. Live Support 365 support sessions are limited to technical support queries only. Ascentive reserves the rights to terminate your Live Support 365 subscription or otherwise limit your access to the Live Support 365 service if Ascentive determines, in its sole discretion, that you are abusing the Live Support 365 service. The use of the Live Support 365 service is only for personal use and any commercial use is prohibited. Your Live Support 365 subscription is non-transferrable and you may not assign or sell your subscription to any third party. Any prohibited assignment or transfer of your Live Support 365 subscription shall be grounds for immediate termination of your Live Support 365 subscription. Support 365 hours are posted on the Ascentive website. Support hours are subject to change at any time without notice.
You acknowledge and agree that Ascentive may use one or more third party service providers in connection with providing the Live Support 365 service.
The Live Support 365 services against any plan order will be available once you have made payment for the applicable service(s). If you signed up for the installment payment plan, the first payment will start your service and subsequent payments are made thirty days following the date of the initial payment until the entire amount due under the installment payment plan has been paid.
When you purchase the Live Support 365 service, you agree to a specific price and plan term of one, two or three years. You may utilize the Live Support 365 service only on such number of computers or devices for which you have paid the applicable subscription fee.
Ascentive may immediately terminate your Live Support 365 subscription, without further notice to you, if you fail to make any required payment. Except as set forth below, any payment received by Ascentive prior to a termination of the Live Support 365 subscription for any reason shall be deemed payment for Ascentive providing the Live Support 365 service to you up to the applicable date of termination, and no refund shall be due or owed to you.
Notwithstanding anything herein to the contrary, your use of the Live Support 365 service, Access Software and Analyzing Software, shall be governed by the terms of the EULA and the Software Purchase Agreement. If there is any conflict between the terms set forth herein, on the one hand, and the terms set forth in the EULA and/or the Software Purchase Agreement, on the other hand, the terms set forth in the EULA and the Software Purchase Agreement shall control.
Third Party Services Additional Terms:
You agree to assume all responsibility for successful operation of any Third Party Services. Even if an Ascentive technician assists you in setup, it is your final responsibility to ensure that all applicable Third Party Services are working properly. You agree that if you have any dispute with the provider of any Third Party Service, you will not include Ascentive in that dispute, and you specifically release Ascentive from any such dispute. You will have no claim whatsoever to any income received by Ascentive from the provider of any Third Party Service.
- Identity Theft Protection. Comprehensive ID theft coverage for 30 days. Your identity is protected and you have access to free professional ID theft remediation services for the next 30 days. Coverage applies for all online and offline identity theft, wherever it occurs, up to $10,000. Some restrictions apply – see Guarantee-Benefits Terms and Conditions (http://www.buysafe.com/legal_notices/guaranteeterms.html) for more information.
- $1,000 Purchase Guarantee. Get what you paid for, or your money back. All the terms of sale for your purchase are guaranteed, including product authenticity, up to $1,000. Some restrictions apply – see Guarantee-Benefits Terms and Conditions (http://www.buysafe.com/legal_notices/guaranteeterms.html) for more information.
- Lowest Price Guarantee. If the same store's published price drops, we'll pay you the difference, up to $100. Some restrictions apply – see Guarantee-Benefits Terms and Conditions (http://www.buysafe.com/legal_notices/guaranteeterms.html) for more information.
If you need to check your benefits, make a claim, report a problem or report a suspected misuse of the buySAFE Seal, then you must register online and complete a Report a Problem Transaction Form at www.buysafe.com. When filing a claim, buySAFE requires that your provide (in addition to any other information that may be requested) your name, email address, city, state, country, postal code, name of the web site, URL, and a description of the issue you are reporting. buySAFE will use that information to investigate and to resolve buyer benefit claims, including contacting you as necessary.
To receive these benefits, your buySAFE 3-in-1 Guarantee must be authentic and valid. buySAFE reserves the right to require more information from you and/or the merchant in order to authenticate your buySAFE 3-in-1 Guarantee. All benefit claims must be made within thirty (30) days of the date of purchase in order to keep benefits, even if all the terms of sale are not yet fulfilled. Once a valid claim is made, coverage applies until the claim is resolved. The benefit expires 30 days from the date of purchase and there is nothing for you to cancel. You will need to register with buySAFE before reporting a problem or claiming any of the benefits.
30 Day Identity Theft Protection Terms. The Identity Theft Protection benefit is not activated automatically: You need to register with buySAFE within 30 days of your eligible purchase. U.S.-based shoppers only are eligible for these benefits. You can receive this additional benefit only once in any 30 day period. Reimbursement up to $10,000. Financial reimbursements are made with no deductible. These expense reimbursement benefits provide for costs attributed to identity fraud, embezzlement, theft, data breach and stolen identity event or forgery, and cover expenses such as:
During the 30 day eligibility period, you can activate this benefit at any time by calling toll free: 866-632-5335, Monday to Friday, 8 a.m. to 8 p.m. EST. You can also enroll in a comprehensive identity protection package via our partner, Assurant, by visiting our website
Live Restoration Services. Two Options: The Enhanced Restoration Option requires that you sign a Limited Power of Attorney. If you prefer not to provide a Limited Power of Attorney, you are still entitled to the Basic Counseling Services that provide you with the information you will need to take action independently.
Low Price Guarantee. Low Price Guarantee benefit claims. If within 30 days of the date you purchase a product guaranteed by buySAFE, you see the exact same product advertised on the same buySAFE merchant's website at a lower published retail price, buySAFE will refund you the difference. Items purchased through specific promotions, bundling arrangements, or coupons are not eligible for the Lowest Price Guarantee. The buySAFE 3-in-1 Guarantee must be valid and you must be a registered buySAFE user (Click here to register with buySAFE).
buySAFE Low Price Guarantee is available only as follows:
i. for a claim greater than $5, up to $100 per transaction and up to a maximum of $200 per claimant in any twelve-month period;
ii. only the purchaser of the original item, to whom the buySAFE GUARANTEED certificate of guarantee was provided at the time of sale, may submit a claim;
iii. Claimant must register with buySAFE in order to submit a claim;
iv. the claim must be filed within 30 days of the original date of purchase;
v. The price reduction that is the subject of the claim must pertain to the same item SKU (including same color and size) being offered for sale on the same merchant's website, on the same merchant terms and conditions.
vi. The Price Guarantee will not apply to any item purchased for which a volume discount, a coupon, a bundling arrangement (eg: two-for-one), a customer rebate, an inventory liquidation, "Closeout Sale", "going out of business", "free offer", "CyberMonday", "Deal of the Day" promotion or other similar special promotional pricing mechanism is applied to the original purchase.
vii. Shipping, handling, taxes, surcharges, and any other similar fees will be excluded from determination of any claim;
viii. No claims may arise from a currency fluctuation; all claims will be reviewed in US dollar terms as priced on the merchant website.
ix. Price Guarantee will not apply to partial, incomplete or cancelled orders, or to any order that is otherwise disputed by either party.
x. Items not eligible for a Price Guarantee are: one-of-a kind items (including antiques, artwork, rare coins and furs); limited edition items; going-out-of-business sale items; services and additional costs (such as installation charges, warranties, shipping, or memberships); used, altered, rebuilt and refurbished items; custom-built items; land and buildings; negotiable instruments (such as promissory notes, stamps and travelers checks); items provided under a leasing arrangement, cash and its equivalent. Normally, items that do not have a standard SKU will not be eligible for Price Guarantee.
xi. For ticket purchases, such as sporting events, shows, concerts, etc., the price reduction subject to claim must be for the same; date and time, show, venue, quantity of tickets and section. Seats must be in the same section and in the same row or lower.
xii. buySAFE or buySAFE Claim Services, Inc., a wholly owned subsidiary of buySAFE, ("BCS") will be the final arbiter of all claims under the Lowest Price Guarantee, and all claim determinations will be final.
Purchase Guarantee. Report a Problem Transaction at www.buysafe.com within 30 days from the date of purchase, and, after exhausting the Dispute Resolution Process via Report a Problem Transaction, there is no resolution, then buySAFE or BCS will, in its discretion, make a determination as to whether the terms of sale were fulfilled. If the claim is resolved in your (the buyer's) favor, buySAFE will reimburse you (the customer) the amount of the direct loss, not to exceed $1,000. The following terms apply to the Purchase Guarantee:
- The terms of sale, as stated on the merchant's website, are guaranteed for the full value of your purchase and up to a maximum of $1,000.
- You must be the buyer in this transaction.
- You must complete the Report a Problem Transaction form within 30 days of the close of your buySAFE Guaranteed transaction to initiate online dispute resolution. You may be asked to register with buySAFE in order to Report a Problem Transaction. The Purchase Guarantee is null and void for any problem transactions reported after 30 days from your date of purchase. All Reported Problems must be made in English.
- Your acceptance of the item(s) purchased terminates the Purchase Guarantee, unless defect was not discoverable or know at the time of acceptance, but in no circumstances will the Purchase Guarantee extend beyond 30 days from the purchase date.
- You have no rights under this Purchase Guarantee if:
The merchant who is party to your transaction, satisfies the terms of sale of your purchase;
The merchant who is party to your transaction, indemnifies and holds you harmless for an amount equal to or greater than the amount of the Purchase Guarantee, from all direct cost and damage incurred by reason of merchant's failure to satisfy the terms of sale;
You have not met the terms of the transaction contract, including making full payment; or
Your purchase of the item must not violate any and all applicable governing laws and regulations.
- The Purchase Guarantee will not respond, under any circumstances, for any damages related to any of the following:
Damages in excess of the purchase price;
Express, implied or statutory product warranties or product guarantees of any kind, including but not limited to implied warranties of merchantability, and fitness for a particular purpose;
Special, incidental or consequential damages including punitive damages; and
Diminution in value of the item.
Any litigation related to the Purchase Guarantee provided must be commenced within one year from the purchase date, except where the applicable period of limitation required by law is longer, then such period shall be the shortest allowable by law.
buySAFE reserves the right to require more information from you and/or the merchant to authenticate and process your purchase guarantee claim.
3. LIMITATIONS OF THE SOFTWARE
Although the Software available on this Site is effective at identifying and addressing many of the factors that can negatively affect computer or mobile device performance and/or security, there are numerous other factors that may not be identified or addressed by the Software. You acknowledge and agree that the Software does not identify and address all potential factors that can negatively affect computer or mobile device performance and/or security, and you further acknowledge and agree that your computer's or mobile device’s performance and/or security may not improve until all such factors are addressed. In some cases, additional Software or other measures may be necessary for your computer or mobile device to attain optimal performance and/or security. For help in analyzing these issues, please contact our customer support team. Other than with respect to the Live Support 365 service (which terms are set forth below), if you are not satisfied with the Software's effect on your computer's or mobile device’s performance or security, you may seek a refund during the Refund Period as stated in the EULA and the Software Purchase Agreement. Not all Software is designed to address both performance and security issues, and you should refer to the documentation for the applicable Software to determine the applicable functionality.
PC SpeedScan & FinallyFast: Scans conducted with this software may detect computer errors that occur as a natural consequence of routine use of the Microsoft Windows Operating System. In some instances, these errors may be harmless and will not affect the performance or operation of the computer system. Certain computer errors may consistently reappear and thus will be repeatedly detected by the software.
PC Scan & Sweep: Scans conducted with this software may detect files that are harmless, the presence of which will not affect the performance, operation, or privacy of your computer system.
ActiveSpeed: Scans conducted with this software detect Internet configuration settings. By default, the Microsoft Windows Operating System sets the values for these configuration settings. The software may suggest that optimization is required, even though default configuration settings are in place.
The Software may identify and label certain threats to your computer's or mobile device’s performance and/or security as "severe" or otherwise categorize the potential threats identified in your computer or mobile device. These labels are intended to convey the potential harm of a particular threat but may not accurately reflect your personal requirements for computer or mobile device speed and/or security. The Software may even identify potential threats in a brand new computer, operating system or mobile device. You acknowledge that it is your responsibility to further research the potential threats identified by the Software and to independently determine your own level of tolerance for these potential threats. In addition, the Software may occasionally identify for deletion certain items and files that may be critical for your system, hardware, and/or software to run. The Software will provide you with an opportunity to review these items and files prior to deletion. You acknowledge that it is your responsibility to verify the items and files identified for deletion and select only those items and files that you wish to delete. Ascentive is not responsible for any system failure, data loss, or any other loss due to removal of system critical items. If you are unsure whether an item should or should not be deleted, please contact your computer or mobile device manufacturer for more information. Please read carefully the Limitations of the Software section contained in the Software Purchase Agreement.
AUTOMATIC RENEWAL (other than Live Support 365 and Paid Software)
You are purchasing a license for software with Ascentive’s subscription service. Unless you terminate your subscription in accordance with this Agreement, Ascentive will automatically renew your license to use the Software at the end of the Initial Term by directly charging your credit card or debiting your debit card for the then current renewal price for the Software. Renewal payments are billed on or about the last day of the Initial Term and each anniversary thereafter until the Software License is terminated. The Renewal Term and your right to receive Software support and Software updates during the Renewal Term will be effective only after our receipt of the foregoing payment and conditioned upon the foregoing payment constituting and continuing to be valid and good funds.
If you have selected a method of payment other than credit card or debit card, your subscription will only be renewed if you provide us with a valid payment prior to the date of renewal. We will email you and notify you by phone, either by recorded message or live person, prior to this date to remind you to renew your account.
You agree to provide us with current, complete, and accurate information for your billing information and to promptly notify us if there is any change in your billing address and, where you have paid by credit or debit card, will promptly notify us if there is any change to your card number, or card expiration date or if your card is cancelled (for example, for loss or theft). If we are unable to charge your credit card or debit your debit card, your subscription and ability to access and use the Software may terminate without further notice to you.
To cancel the Automatic Renewal Service, call customer service at 1-800-355-3718 or go to the following link: http://www.ascentive.com/support/contact_us/auto_renewal_cancel_form/
If you purchased the software from a third party vendor,please be sure to read their terms and conditions regarding refunds as their rules may apply. If you purchased the software or program from a third party partner and believe you are entitled to a refund but are unsuccessful in reaching our partners, please contact Ascentive immediately or within 30 days for assistance.
Live Support 365:
Ascentive will issue you a full refund for amounts actually received by Ascentive from you for your Live Support 365 subscription if Ascentive attempts, but fails, to resolve at least one issue identified by Ascentive within the first 10 days of your Live Support 365 subscription or during the initial Live Support 365 free diagnosis. Not all issues identified by Ascentive will necessarily impact your computer or device performance, security or stability and your results may vary dependent on what is actually limiting a particular computer or device. Beginning 10 days after your purchase of the Live Support 365 subscription, the Live Support 365 subscription is non-refundable. If you have elected to pay for Live Support 365 services by means of an installment payment plan, you are responsible for any and all subsequent payment installments until the entire amount of your Live Support 365 subscription fee has been paid in full to Ascentive. If one or more issues identified by Ascentive are resolved, your Live Support 365 subscription is non-cancellable and no fees will be refundable to you. In order to qualify for a Live Support 365 refund:
You must have allowed Ascentive access to your computer or device as provided herein and as otherwise requested by Ascentive to perform diagnostics and problem mitigation. Our process is to escalate difficult cases through our technician expertise levels, which may mean that you will need to have several diagnostic sessions to ultimately solve your computer or device problem; and
You must have followed recommendations prescribed by Ascentive personnel, or allowed Ascentive personnel to perform required operations, including; installation of appropriate software and required updates, adjusting of settings, the deletion of suspicious files; and
Ascentive was either (1) not able to identify an issue with your computer, device or software, or (2) unable to correct or mitigate an issue Ascentive identified on your computer, device or software. Not all issues identified by Ascentive will necessarily impact your computer or device performance, security or stability and your results may vary dependent on what is actually limiting a particular computer or device.
If you purchased a third party technical support plan from one of Ascentive’s partners, please contact them and read their terms and conditions for specifications. If you feel that you have not received adequate or promised service from one of our partners please contact Ascentive within 30 days for immediate action.
4. REFERENCES TO THIRD PARTY MATERIAL
This website may include information or reference to Third Party Material. Such references are for informational purposes.
ASCENTIVE DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES, INCLUDING THIRD PARTY VENDORS AND THIRD PARTIES ACCESSIBLE THROUGH LINKED SITES. ASCENTIVE MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT, AND SHALL NOT BE LIABLE FOR, ANY SUCH THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
5. WARRANTIES AND DISCLAIMERS; LIMITATION TO LIABILITY
ANY MATERIALS ARE PROVIDED ON AN "AS IS" BASIS. ASCENTIVE ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION OR SOFTWARE OR OTHER DOCUMENTS WHICH ARE REFERENCED BY OR LINKED TO THIS WEB SITE. THIS SITE COULD INCLUDE TECHNICAL OR OTHER INACCURACIES. CHANGES ARE PERIODICALLY MADE TO THE INFORMATION HEREIN. HOWEVER, ASCENTIVE MAKES NO COMMITMENT TO UPDATE MATERIALS ON THIS SITE.
ASCENTIVE SPECIFICALLY DISCLAIMS ALL EXPRESS, STATUTORY, OR IMPLIED WARRANTIES RELATING TO THESE MATERIALS, INCLUDING BUT NOT LIMITED TO THOSE CONCERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS REGARDING THE MATERIALS. ASCENTIVE SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY LOSS OF REVENUE OR PROFIT OR FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES, WHETHER BASED ON TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), CONTRACT, OR OTHER LEGAL OR EQUITABLE GROUNDS EVEN IF ASCENTIVE HAS BEEN ADVISED OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL ASCENTIVE, ITS OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN PROVIDING THE SITE, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA, SOFTWARE OR HARDWARE, INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NON-DELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SITE, THE MATERIAL, ANY ASCENTIVE PRODUCT OR SERVICE, OR ANY OTHER HYPERLINKED WEBSITE, OR ANY DAMAGES RESULTING FROM THE USE OF OR RELIANCE ON THE SITE AND/OR THE MATERIAL PRESENTED, EVEN IF ASCENTIVE HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
MANAGERS, HOSTS, PARTICIPANTS, MODERATORS AND OTHER THIRD PARTIES ARE NOT AUTHORIZED ASCENTIVE SPOKESPERSONS, AND THEIR VIEWS DO NOT NECESSARILY REFLECT THOSE OF ASCENTIVE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ASCENTIVE WILL HAVE NO LIABILITY RELATED TO USER CONTENT ARISING UNDER INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY OR OTHER LAWS. ADOBE ALSO DISCLAIMS ALL LIABILITY WITH RESPECT TO THE MISUSE, LOSS, MODIFICATION OR UNAVAILABILITY OF ANY USER CONTENT.
ASCENTIVE SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF THE SITE AND MATERIALS, OR YOUR PARTICIPATION IN ANY SERVICES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. ASCENTIVE ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER OR MOBILE DEVICE FROM THE SITE OR ANY OF THE SERVICES OR MATERIALS.
6. SITE USER AGREEMENT TO INDEMNIFY AND HOLD HARMLESS
7. EXPORT CONTROLS
Some of the Software shall be subject to U.S. export control laws and may also be subject to the laws of the country where you reside. Those who download or otherwise obtain available Software do so on their own initiative and are responsible for compliance with all applicable laws. This Site is controlled, operated and administered by Ascentive from its offices in the United States of America.
You agree to comply with all applicable laws, statutes, ordinances, and regulations regarding your use of the Site. Notwithstanding anything to the contrary, Ascentive makes no representation that the Site or the Material is appropriate or available for use in other jurisdictions. If you choose to access the Site from such a jurisdiction, you do so at your own risk.
You acknowledge and agree that products, services or technology provided by Ascentive are subject to the export control laws and regulations of the United States. You agree to comply with the export control laws and regulations of the United States and shall not, without prior authorization of Ascentive, export, re-export, or transfer Ascentive products, services or technology, either directly or indirectly, to any country.
8. SITE COMPLIANCE WITH DIGITAL MILLENNIUM COPYRIGHT ACT
If you have any concerns that any Materials or other content posted on the Site may be infringing upon another party's intellectual property, contact our Intellectual Property Agent immediately. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512).
Intellectual Property Agent
50 S. 16th Street
Philadelphia, PA 19102 USA
Fax (215) 320-6001
All notices must comply with the requirements of U.S. Copyright Act 17 U.S.C. 512(c)(3) and regulations promulgated thereunder, each as amended. Such notices not complying with these requirements may not be considered. Notices must include:
§ A physical or electronic signature of the owner or a person authorized to act on behalf of the owner ("Complaining Party") of an exclusive right that is allegedly infringed;
§ Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works on our Site are covered by a single notification, a representative list of such works at that site;
§ Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Ascentive to locate the material;
§ Information reasonably sufficient to permit Ascentive to contact the Complaining Party, such as an address, telephone number, and if available, an electronic mail address at which the Complaining Party may be contacted
§ 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;
§ A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is the owner or is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
§ A statement that you consent to jurisdiction of the Federal District court for the district where you reside (or of the Eastern District of Pennsylvania if you reside outside of the United States) and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) of the Digital Millennium Copyright Act or an agent of such person.
Before filing such a notification, make a careful determination as to whether or not the use of copyrighted material at issue is protected by the "fair use" doctrine. You could potentially be held liable for costs and attorneys' fees should you file a takedown notice where there is no infringing use. If you are unsure whether a use of your copyrighted material constitutes infringement, it may be advisable to seek legal counsel from an attorney prior to your filing your notice or consult publicly available reference materials such as those found at www.chillingeffects.org.
9. CLASS ACTION WAIVER AND ARBITRATION
You acknowledge and agree that this Class Action Waiver And Arbitration Section and the agreements contained herein are made pursuant to a transaction that involves interstate commerce, and shall be governed by, and be enforceable under, the Federal Arbitration Act (the "FAA") (9 U.S.C. §1 et seq.) as it may be amended from time to time. The circumstances and procedures under which Claims (as defined below) may be resolved by arbitration instead of in court are set forth herein. For the purposes of this Class Action Waiver And Arbitration Section, “we,” “us” and “Ascentive” means Ascentive LLC, including any parent, subsidiaries, affiliates, licensees, predecessors, successors, or assigns, and all of their officers, directors, employees, agents, and assigns.
Notwithstanding anything herein to the contrary, you retain the right to pursue any Claim in a small claims court and proceed on an individual basis for any such Claim that is within the court's jurisdiction. Arbitration of Claims will be conducted as an individual action. Neither party agrees to any arbitration on a class or representative basis and the arbitrator shall not have authority to proceed with any arbitration on a class or representative basis. Even if a class action lawsuit or other representative action is filed, including in the form of a private attorney general action, any Claim between you and us related to such lawsuits will be subject to an individual arbitration claim if so elected by either you or us. Arbitration proceedings with respect to separate Claims will not be consolidated without the consent of all parties. Only those Claims that are (1) brought by us against you, or your heirs or your trustee in bankruptcy or (2) brought by you, or your heirs or your trustee in bankruptcy against us, may be joined in an individual action under this Class Action Waiver And Arbitration Section.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice") describing (a) the nature and basis of the Claim or dispute; and (b) the specific relief sought (“Demand”). The Notice to Ascentive should be addressed to: Dispute Resolution Agent, Ascentive LLC, 50 S. 16th Street, Suite 3575, Philadelphia, PA 19102 USA ("Notice Address"). You must notify us of any Claim brought by you within 100 days of the event or events giving rise to such Claim or you will have waived your right to bring such Claim or to participate in any legal action relating to such Claim. If Ascentive and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Ascentive may commence an arbitration proceeding. The amount of any settlement offer made by Ascentive or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Ascentive is entitled. After Ascentive receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee required by the arbitration administrator, unless your Claim is for greater than $75,000.
The party filing a Claim in arbitration must choose one of the following two arbitration administrators: American Arbitration Association; or JAMS/Endispute ("JAMS"), both of which are independent from us. Any arbitration will be conducted under the rules of the selected arbitration administrator by an impartial third party chosen in accordance with the rules of the selected arbitration administrator and as provided herein. Arbitration hearings will be held at a place chosen by the arbitrator or arbitration administrator within the federal judicial district in which you reside at the time the Claim is filed or at some other place as agreed by the parties in writing. If your Claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing as established by the rules of the arbitration administrator. Copies of the current rules of the arbitration administrators named above, and well as information about arbitration and arbitration fees, and instructions for initiating arbitration may be obtained by using the following contact information:
American Arbitration Association
1633 Broadway, 10th Floor, New York, NY 10019
Web site: www.adr.org
1920 Main Street, Suite 300, Irvine, CA 92614
Web site: www.jamsadr.com
Except as otherwise provided for herein, Ascentive will pay all filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your Claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the rules of the arbitration administrator. In such case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the rules of the arbitration administrator. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the rules of the arbitration administrator.
If, after finding in your favor in any respect on the merits of your Claim, the arbitrator issues you an award that is greater than the value of Ascentive's last written settlement offer made before an arbitrator was selected, then Ascentive will:
- pay you the amount of the award or $10,000 ("the alternative payment"), whichever is greater; and
- pay your attorney, if any, twice the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration ("the attorney premium").
If Ascentive did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
Any failure or other delay by either party in enforcing this Class Action Waiver And Arbitration Section at any time, or in connection with any particular Claims, will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. Decisions rendered in arbitration proceedings will be final and binding on the parties. There shall be no appeal from arbitration decisions other than for arbitrator bias, fraud or misconduct and any award granted in arbitration will be enforceable by any court having jurisdiction as provided by the FAA and/or other applicable law.
10. GOVERNING LAW AND JURISDICTION
You agree that all matters relating to your access to, or use of, this web site shall be governed by the laws of the Commonwealth of Pennsylvania. Subject to the provisions of the Arbitration Section set forth above, you agree and hereby submit to the exclusive personal jurisdiction and venue of the Court of Common Pleas of Philadelphia County in Philadelphia, Pennsylvania and the United States District Court for the Eastern District of Pennsylvania located in Philadelphia, with respect to such matters. With respect to Third Party Services (as described in Section 2), you may be subject to other controlling law and other courts and venues.