These Terms of Use set forth the terms and conditions that apply to your use of www.livemosaic.com (the "Web Site"). By using the Web Site (other than to read this page for the first time), you agree to comply with all of the Terms of Use set forth herein. The right to use the Web Site is personal to you and is not transferable to any other person or entity.
The information and materials on the Web Site could include technical inaccuracies or typographical errors. Changes are periodically made to the information contained herein. LIVEMOSAIC MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY INFORMATION, MATERIALS OR GRAPHICS ON THE WEB SITE, ALL OF WHICH IS PROVIDED ON A STRICTLY "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO ANY INFORMATION, MATERIALS OR GRAPHICS ON THE WEB SITE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES SHALL THE SITE OWNER OR PUBLISHER BE LIABLE UNDER ANY THEORY OF RECOVERY, AT LAW OR IN EQUITY, FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, SPECIAL, DIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO LOSS OF USE OR LOST PROFITS), ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE USE OF INFORMATION OR SERVICES, OR THE FAILURE TO PROVIDE INFORMATION OR SERVICES, FROM THE WEB SITE.
LiveMosaic Products or Services are intended and offered only for lawful Use by individuals or organizations with the legal capacity and authority under applicable law to enter into a contract. LiveMosaic does not offer LiveMosaic Products or Services to minors or where prohibited by law. By registering for and/or by Using LiveMosaic Products or Services, you represent and warrant that you have the legal capacity and authority to enter into a binding agreement to adhere to the LiveMosaic Terms and Conditions of Use and that you will Use LiveMosaic Products or Services only in accordance with these Terms and Conditions of Use and with all applicable laws. If you are Using LiveMosaic Products or Services on behalf of an entity or organization, you warrant, represent, and covenant to LiveMosaic that you are duly authorized to agree to these Terms and Conditions of Use on behalf of the organization and to bind the organization to them.
You agree to provide accurate and complete information when you register for a LiveMosaic Product or Service and you agree to keep such information accurate and complete during the entire time that you Use LiveMosaic Products or Services.
We may ask you from time to time to establish a user name or password to access or Use the LiveMosaic Products or Services. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password.
You may not Use LiveMosaic Products or Services for any unlawful purpose.
Without limiting the foregoing:
(a) LiveMosaic Products or Services may not be Used to store, backup, or distribute obscent or pornographic material and may not be Used in violation of U.S. export control laws or the export or import regulations of other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export, or import as may be required.
(b) You may not Use LiveMosaic Products or Services if you are a citizen, national, or resident of, or are under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, or any other country to which the United States has prohibited export. Each time you Use LiveMosaic Products or Services you represent, warrant, and covenant that:
(i) You are not a citizen, national, or resident of, nor under the control of, any such country to which the United States has prohibited
export; (ii) You will not download or otherwise export or re-export the LiveMosaic Software, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries; (iii) You are not listed on the U.S. Department of Treasury’s Lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, the U.S. Department of State’s List of Statutorily Debarred Parties, or the U.S. Department of
Commerce’s Denied Persons List, Entity List, or Unverified List Table of Denial Orders; (iv) You will not download or otherwise export or re-export the LiveMosaic Software, directly or indirectly, to persons on the above mentioned lists; (v) You will neither Use nor allow the LiveMosaic Software to be Used for, any purposes prohibited by United States federal or state law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical, or
biological weapons of mass destruction; (vi) The LiveMosaic Software will not be exported, directly, or indirectly, in violation of these laws, nor will the LiveMosaic Products or Services be Used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation; and (vii) You
are not using or permitting others to Use LiveMosaic Products or Services to create, store, backup, distribute, or provide access to child pornography.
LiveMosaic has the right at any time to change, modify, add to, discontinue, or retire any LiveMosaic Product or Service and any aspect or feature of the LiveMosaic Products or Services including, but not limited to, the software, hours of availability, equipment needed for access or Use, the types of files that are supported, any particular service, or the availability of LiveMosaic Products or Services on any particular device or communications service.
LiveMosaic will provide notice of material changes to the LiveMosaic Products or Services or changes to this Agreement by posting them to www.LiveMosaic.com. LiveMosaic shall have no obligation to provide you with notice of any such changes in any other manner. It shall be your responsibility to check our website periodically to inform yourself of any such changes.
From time to time, LiveMosaic may issue new releases, revisions, or enhancements to the LiveMosaic Products or Services available to you free of charge or for a fee. New releases, revisions or enhancements may be licensed, downloaded, and installed only to the extent that you hold a valid license to Use the LiveMosaic Products or Services being updated or upgraded, and you may Use them only in accordance with the then-current Terms and Conditions of Use and any additional license terms that may accompany them.
LiveMosaic may automatically update LiveMosaic Products or Services you have installed on your computer without your prior consent. If any automatic updates involve the payment of additional fees, we will provide you with the opportunity to approve such fees prior to the new functionality being enabled. If you fail or refuse to approve such fees, LiveMosaic may, in its sole discretion, terminate your current license, continue to support your current LiveMosaic Products or Services without the automatic update, or replace your LiveMosaic Products or Services with other LiveMosaic Products or Services. If LiveMosaic terminates your current license on account of your failure or refusal to approve such fees, then LiveMosaic will refund, on a pro-rata basis based on the remaining term of the current license, any fees related to the period during which you will not have access to your LiveMosaic Products or Services. If LiveMosaic updates the LiveMosaic Products or Services without requiring an additional fee and you object to such change, your sole remedy shall be to terminate your use of the LiveMosaic Products and Services.
(a) Scope of License. LiveMosaic grants you a personal, limited and revocable license to
create a private website on the LiveMosaic system, and to Use the LiveMosaic Products or Services for the sole and exclusive purposes of connecting to and using the LiveMosaic Products or Services for your personal or internal business purposes in accordance with these Terms and Conditions of Use, provided you comply and remain in compliance with this Agreement. We reserve all other rights to the LiveMosaic Products or Services.
You may not sub-license, or charge others to Use or access, the LiveMosaic Products or Services and you may not redistribute the LiveMosaic Products or Services or provide others with access to or Use of them, unless you have entered into a Reseller, Affiliate or similar Agreement with LiveMosaic to engage in this activity. Without limiting the forgoing, you will not permit others to Use the LiveMosaic Products or Services to access or decrypt data stored on servers provided by
LiveMosaic or LiveMosaic Affiliates; you will not Use or permit others to Use the LiveMosaic Products or Services to decrypt data encrypted by others; and you will not Use or permit others to Use the LiveMosaic Products or Services to provide encryption or decryption services to others, whether or not such services are compensated.
(c) Renewals. You agree that LiveMosaic shall have the right to automatically and without notice renew your license to continue to Use the LiveMosaic Products or Services upon expiration of your then-current license, and that as part of such renewal LiveMosaic shall have the right to charge the applicable renewal fees and any applicable taxes to any credit card you used to purchase your then-current license. You agree that if you elect to not permit LiveMosaic the right to automatically renew your license to Use LiveMosaic Products or Services or your credit card information on file with LiveMosaic does not permit automatic renewal, then LiveMosaic may terminate your license.
You agree that if you have licensed LiveMosaic Products or Services for a period of greater than ninety (90) calendar days you have sixty (60) calendar days from the date that your license was renewed to elect to discontinue your Use of LiveMosaic Products or Services. If you have licensed LiveMosaic Products or Services for a period of less than or equal to ninety (90) calendar days you have seven (7) calendar days from the date that your license was renewed to elect to discontinue your Use of LiveMosaic Products or Services. If you elect to discontinue your Use of LiveMosaic Products or Services within this period, you will be issued a full refund for the amount of your license renewal. You are responsible for ensuring that LiveMosaic has current and accurate records necessary, to renew your license, including without limitation, credit card data.
(d) Upgrades. LiveMosaic may in its sole discretion provide automatic upgrades to the LiveMosaic Products or Services. These upgrades may not be consistent across all platforms and computers and that the performance and features offered by LiveMosaic may vary depending on your computer and
other equipment. You agree that we may automatically check your version of the LiveMosaic Software and automatically update the LiveMosaic Software on your computer. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related activities and services. If you shut down your computer or the
LiveMosaic Software during an automatic update or otherwise interfere with the installation of the update, the software may be damaged and/or cease to operate.
LiveMosaic may, in its sole discretion, transfer or assign all or any part of its rights in the LiveMosaic Software, the LiveMosaic Products or Services, and any license or contract related thereto, and may delegate all or any portion of its duties, if any, under any such LiveMosaic Products or Services, licenses, or other contracts.
You may not sell, assign, grant a security interest in or otherwise transfer any right in the LiveMosaic Products or Services, nor incorporate them (or any portion of them) into another product or service. You may not copy the LiveMosaic Products or Services. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the LiveMosaic Software or decrypt any files that are not associated with your computer.
You may not modify the LiveMosaic Software or use it in any way not expressly authorized by these Terms and Conditions of Use. You may not obtain the communications protocol for accessing the LiveMosaic Products. You may not authorize or assist any third party to do any of the foregoing.
You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer.
LiveMosaic may, in its sole discretion, provide customer support or service to its customers. This service may be available only on selected days and during a limited number of hours. Service may also be available through only certain delivery vehicles such as email or telephone and some services may only be available for the payment of an additional fee or charge. As part of the delivery of services LiveMosaic may employ a variety of tools or services to aid in the process of resolving your issues as a user. You grant LiveMosaic the right to use these tools and hold LiveMosaic harmless for the use of these tools as well as the guidance provided by its customer support staff who in no way can be fully aware of all of the complexities associated with the LiveMosaic product, your computer, or all of the related or associated infrastructure such as your internet service provider’s infrastructure.
You may access LiveMosaic Products or Services only through the interfaces and protocols provided or authorized by LiveMosaic. You agree that you will not access LiveMosaic Products through unauthorized means, such as unlicensed software clients.
You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and Use LiveMosaic Products or Services. Without limiting the foregoing, you must pay all charges, taxes, and other costs and fees related to obtaining your own Internet access, telephone, computer, and other equipment. and any communications or other charges incurred by you to access LiveMosaic Products or Services.
LiveMosaic SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF LiveMosaic PRODUCTS OR SERVICES TO USERS WHO ARE DEEMED BY LiveMosaic TO BE USING THE LiveMosaic PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY LiveMosaic OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER’S ACCOUNT WITH LiveMosaic AND THE LICENSE TO USE THE LiveMosaic PRODUCTS OR SERVICES.
You agree that we may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of LiveMosaic Products or Services and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources and to take such technical and other remedies as we deem appropriate. Your consumption of LiveMosaic Products or Services may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of LiveMosaic’s customers, generally. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan that will permit you to continue to use LiveMosaic Products or Services. Although violations of this policy have been infrequent, we nevertheless reserve the right to terminate or suspend your license and any license to use the LiveMosaic Software, without prior notice in the event of a violation of this policy.
LiveMosaic will collect and use Personal Information in accord with the terms of our LiveMosaic Privacy Policy, which is incorporated into and made a part of these Terms and Conditions of Use. You hereby consent to LiveMosaic’s use of your Personal Information under the terms of the LiveMosaic Privacy Policy, as it may be amended from time to time.
To provide its services, LiveMosaic routinely archives data that have not been accessed recently. Archived data will still be accessible through your web site, but there may be some time delay as the data is brought online.
LiveMosaic respects your privacy and takes steps to protect your files from being viewed. However, LiveMosaic will may need to access and view your files if: i) it reasonably believes that it must do so to troubleshoot problems with the LiveMosaic Services or ii) it reasonably believes it must do so in order to comply with a law, subpoena, warrant, order, or regulation, including, without limitation, the requirement of a certification that complies with 18 U.S.C. § 2703. LiveMosaic may also provide access to your data to government authorities if LiveMosaic suspects or believes that the data contain pornography or other prohibited data or that the data are being used for illegal purposes. You acknowledge that LiveMosaic or LiveMosaic Affiliates may use servers and other equipment to provide the LiveMosaic Products or Services that are located in the United States or in other countries where litigants, law enforcement, courts, and other agencies of the government may have the right to access data stored within their jurisdictions upon terms and conditions provided by local law, and that as a result, they may gain access to your Data as provided by applicable local law.
(a) WARRANTY. LiveMosaic warrants that the LiveMosaic Products or Services will for a period of sixty (60) days from the date of registration and payment perform substantially as specified in the applicable LiveMosaic documentation. If you satisfactorily demonstrate to LiveMosaic within such sixty (60) day period that a LiveMosaic Product or Service contains errors, then as LiveMosaic’s sole and exclusive liability and as your sole and exclusive remedy, LiveMosaic
shall at its sole option either use commercially reasonable efforts to correct the errors reported by you, replace the LiveMosaic Product or Services affected with a substantially conforming product or service, or refund the fee you paid for the LiveMosaic Product or Service and terminate your license under the Terms and Conditions of Use. LiveMosaic does not warrant the results of its correction or replacement LiveMosaic Products or Services. Correction or replacement under this Section 16
(Warranties), and the issuance of any corrections, patches, bug fixes, workarounds, upgrades, enhancements, or updates by LiveMosaic to you, shall not be deemed to begin a new, extended, or additional license, license period, or warranty period.<
(b) DISCLAIMER OF OTHER WARRANTIES. THE LIMITED WARRANTY IN THE PRECEDING PARAGRAPH IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. LiveMosaic and the LiveMosaic Affiliates do not warrant that the functions contained in the LiveMosaic Products or Services will meet your requirements, that the operation of the LiveMosaic Products or Services will be uninterrupted or error-free, or that defects in the LiveMosaic Products or Services will be corrected. LiveMosaic and LiveMosaic Affiliates do not warrant or make any representations regarding the use or the results of the use of the LiveMosaic Products or Services in terms of their correctness, accuracy, reliability or otherwise. LiveMosaic and LiveMosaic Affiliates do not
represent or warrant that users will be able to access or use the
LiveMosaic Products or Services at times or locations of their choosing,
or that LiveMosaic and LiveMosaic Affiliates will have adequate capacity
for any user’s requirements. No oral or written statement, information
or advice given by LiveMosaic, LiveMosaic Affiliates, or their respective
employees, distributors, dealers, or agents shall create any warranties
in addition to those express warranties set forth in this Section 16
(Warranties). You may have other statutory rights. However, to the full
extent permitted by law, the duration of statutorily required
warranties, if any, shall be limited to the warranty period.
With respect to defects or deficiencies in the LiveMosaic Products or Services, the liability of LiveMosaic and LiveMosaic Affiliates will be limited to performance of its responsibilities under Section 16 (Warranties) above. With respect to other breaches of contract, the liability of LiveMosaic and LiveMosaic Affiliates shall be limited to your actual damages, and in no event will such liability exceed the total amount received by LiveMosaic from you under these Terms and Conditions of Use for your current license period, and only such amounts as relate to the computer affected by the breach. IN NO EVENT WILL LiveMosaic, THE LiveMosaic CONTRACTS, LiveMosaic DISTRIBUTORS OR LiveMosaic SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE LiveMosaic PRODUCTS OR SERVICES OR TO USE OR RETRIEVE ANY DATA, WHETHER FOR BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT, OR ON ANY STRICT LIABILITY THEORY, EVEN IF LiveMosaic HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR A REMEDY SET FORTH IN THESE TERMS OF USE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
Neither LiveMosaic nor any LiveMosaic Affiliate assumes any liability to any party other than you arising out of your Use or inability to Use the LiveMosaic Products or Services. The limitations of damages set forth above are fundamental elements of the bargain between LiveMosaic and you. LiveMosaic would not be able to provide the LiveMosaic Products or Services to you without such limitations.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS LiveMosaic, LiveMosaic AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES, ARISING OUT OF YOUR USE OF THE LiveMosaic PRODUCTS OR SERVICES AND/OR YOUR VIOLATION OF ANY TERM OF THESE TERMS AND CONDITIONS OF USE.
LiveMosaic RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. IN THAT EVENT, AND ONLY IN SUCH EVENT, SHALL YOU HAVE NO FURTHER OBLIGATION TO PROVIDE A DEFENSE FOR LiveMosaic IN THAT MATTER. If LiveMosaic chooses to provide its own defense in connection with any matter subject to indemnification under these Terms and Conditions of Use, you shall participate and cooperate in the defense of LiveMosaic and LiveMosaic Affiliates, at your own expense, to the full extent requested by LiveMosaic.
All trademarks, service marks or other similar items appearing on the LiveMosaic Products or Service are the property of their respective owners, including, without limitation, LiveMosaic (Tungsten, Inc).
The LiveMosaic Products or Services are protected by copyright and other intellectual property laws, title, ownership rights, and intellectual property rights in the LiveMosaic Products or Services shall remain with LiveMosaic and its licensors. You agree not to take any action to jeopardize, limit, or interfere in any manner with LiveMosaic’s or its licensor’s ownership of or rights with respect to the LiveMosaic Products or Services.
The LiveMosaic Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the LiveMosaic Software with only those rights set forth therein.
You acknowledge and agree that the LiveMosaic Products or Services are not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, life support or emergency medical operations or uses, and that LiveMosaic makes no warranty and shall have no liability arising from any Use of the LiveMosaic Products or Services in any high risk or strict liability activities.
(a) Arbitration of Domestic (U.S.) Disputes. All disputes arising
under or relating to this Agreement shall be resolved by final and
binding arbitration conducted before a single arbitrator pursuant to
the commercial arbitration rules of Resolute Systems, Inc. that were in
force as of April 30, 2008. Evidentiary hearings and any other
proceedings requiring personal attendance of parties or their
representatives or witnesses shall be conducted in any U.S. city
reasonably designated by the Licensee in the case of individual
Licensees who procured the LiveMosaic Products or Services provided for
by this Agreement primarily for non-commercial personal, family, or
household purposes ("Consumer Licensees"), and in Austin, Texas
or such other place within the United States as the arbitrator may
direct in the case of all other Licensees ("Commercial Licensees").
(b) Arbitration of International Disputes. Notwithstanding the
provisions of Subsection 22(a) (Arbitration of Domestic Disputes), any
dispute arising under this Agreement that involves a dispute between
LiveMosaic and a person who is neither a citizen nor a resident of the
United States, shall, at either party’s request, be finally settled
under the Rules of Arbitration of the International Chamber of Commerce
by one or more arbitrators appointed in accordance with the said Rules,
with such arbitration to be conducted in the United States or such other place
as the parties to such arbitration may agree.
(c) Exceptions to Agreement to Arbitrate. Notwithstanding the
provisions of Subsections 22(a) (Arbitration of Domestic Disputes) and
22(b) (Arbitration of International Disputes), disputes pertaining to
i) export controls, ii) unlawful Use of the LiveMosaic Products or
Services, or iii) the scope, applicability, or compliance with
governmental or court-ordered access to or limits on use of
Data, shall not be resolved by arbitration, but shall instead by
resolved by reference to a judicial or administrative body with
jurisdiction over the dispute.
(d) Costs of Arbitration. The administrative expenses, arbitrator fees,
and facility charges associated with the arbitration, whether domestic
or international, shall be split equally between the parties; provided
that, in cases involving Consumer Licensees, the Consumer Licensee
shall not be required to bear such expenses, fees, and charges in
excess of One Thousand U.S. Dollars ($1,000), and LiveMosaic shall bear
the remainder of such expenses, fees, and charges. Each party shall be
solely responsible for its attorney fees, expert witness fees, and
other costs, fees, and expenses, except as may otherwise be provided in
Section 18 (Indemnification).
(e) Discovery Procedures in Arbitration. The parties shall be entitled
to such discovery as in the judgment of the arbitrator is appropriate,
in light of the nature and objectives of arbitration, to ensure that
each party has an adequate opportunity to determine the factual bases
for its claims and defenses.
(f) Class Actions. Class actions and other procedural devices, however
denominated, that allow pursuit in a single proceeding of claims of
more than one claimant unrelated by blood or marriage shall not be
permitted in the case of arbitrations hereunder involving either
Consumer Licensees or Commercial Licensees or both.
(g) Form and Effects of Award. The arbitrator shall render a naked
award. Judgment on any arbitral award under this Agreement may be
entered in any court of competent jurisdiction. It is the intent of the
parties that neither the award nor any resulting judgment have res
judicata (claim preclusion) or collateral estoppel (issue preclusion)
effects except as between the parties themselves.
(h) Governing Law. The arbitration undertaking in this Agreement shall
be governed by, construed, and interpreted in accordance with the
Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. and, in the case of
arbitrations involving one or more non-U.S. parties, by the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards and the
U.S. legislation implementing the same, 9 U.S.C. §§ 201 et seq. To the
extent that the Arbitration provisions of this Agreement do not apply,
the federal and state courts sitting in Boston, Massachusetts shall
have exclusive jurisdiction and venue to adjudicate any dispute arising
out of this Agreement. Each party hereto expressly consents to the
personal jurisdiction of the courts of Texas and service of
process being effected by registered U.S. mail or by private delivery
service providing proof of delivery, sent to the party being served.
All other provisions of this Agreement shall be governed by and
construed and interpreted in accordance with the internal laws of the
State of Texas, USA, without regard to conflict of laws
provisions. The United Nations Convention on Contracts for the
International Sale of Goods as well as any other similar law,
regulation or statute in effect in any other jurisdiction shall not
apply.
(a) Trial and Evaluation Licenses. If this Agreement pertains to a
trial, beta, or evaluation license (such as a license that provides a
limited amount of use for free, for which you have not paid a fee
and/or for which you do not pay a fee and associated taxes on or prior
to expiration), the license granted under these Terms and Conditions of
Use will terminate upon the expiration or cancellation of the trial or
evaluation period, when the LiveMosaic Product or Service you are using
is no longer made available, six (6) months from the date you first
installed the LiveMosaic Product and Service, or when LiveMosaic cancels
or terminates the license, whichever is shorter. You agree to Use the
LiveMosaic Products or Services for no longer than the trial or
evaluation period unless you enter into another license and pay a
license fee and associated taxes as applicable, or LiveMosaic allows
your license to roll over for another one (1) year period which
LiveMosaic may elect to do at its sole discretion and without notice to
you.
(b) All Other Licenses; Limited Term. Your license will end upon the
expiration of its stated term, upon your non-renewal of the licenses,
upon your cancellation of the license, when LiveMosaic elects to
discontinue the product, upon your breach of these Terms and Conditions
of Use (if such breach is not cured within the time indicated below in
this Section 23 (Termination, Expiration, Cancellation), or when
LiveMosaic cancels or terminates your license, whichever occurs first
(any such expiration, cancellation, discontinuation, or termination are
referred to hereafter as "termination.")
(c) Termination for Unlawful or Abusive Use, Other Breach. LiveMosaic
may block your access to your Backup Data and/or terminate your Use of
the LiveMosaic Products or Services if LiveMosaic reasonably believes
that the Private Web Site may contain pornography or are being used to
support other types of illegal activities, if providing LiveMosaic
Products or Services to a person located in a particular country would
violate U.S. or other applicable law, or if your continued Use of
LiveMosaic Products or Services may damage, disable, overburden, or
impair our servers or networks.
If you breach these Terms and Conditions of Use, your right to Use the
LiveMosaic Products or Services shall automatically terminate if you
fail to cure the breach after seven (7) calendar days after notice from
LiveMosaic or any of the LiveMosaic Affiliates, unless your breach is due
to violations of Section 4 (Lawful Use), Section 8 (No Transfers or
Modifications by You), Section 18 (Indemnification), Section 19
(Trademarks), Section 20 (U.S. Government Restrictions), in which case
termination will be without notice and without any right to cure.
Upon termination: i) you shall immediately cease any and all Use of the
LiveMosaic Products or Services; ii) the
LiveMosaic Software may be disabled by LiveMosaic without notice to you;
and iii) you will no longer have the right to access your Private Site Data; you hereby grant LiveMosaic the unrestricted right to
delete all such Personal Information and Data at any time after
termination, without notice.
In the event of any termination, expiration, or cancellation, the restrictions on your Use of the Software and the other applicable restrictions as set forth in Section 4 (Lawful Use), Section 6 (LiveMosaic License), Section 8 (No Transfers or Modifications by You), Section 16 (Warranties), Section 17 (Limitation of Liability), Section 18 (Indemnification),Section 19 (Trademarks, Service Marks, and Other Intellectual Property), Section 20 (U.S. Government Restricted Right), Section 21 (High Risk Activity), Section 22 (Dispute Resolution, Governing Law, Venue), Section 24 (Survival), Section 25 (Notice), Section 28 (Limitation on Actions), and Section 30 (Miscellaneous) shall survive such termination, expiration, or cancellation, and you agree to remain bound by those terms.
Any notice that may or must be given by LiveMosaic in connection with this Agreement or in connection with the Use of the LiveMosaic Products or Services, may be given by sending it to the email address provided by you upon registering for the LiveMosaic Products or Services or as you may provide from time to time thereafter by modifying your user profile at www.LiveMosaic.com. You are responsible for ensuring that your accurate email address is available to LiveMosaic and provide any needed updates. LiveMosaic may, in its sole discretion, use other means of providing notice, such as: desktop notification; regular, certified, or registered mail; fax; commercial delivery service; or messenger. All such notices shall be deemed given when dispatched with payment of delivery charges made or arranged. You hereby consent to receiving notice by any such means. Notwithstanding the foregoing, LiveMosaic has no obligation to provide notice or attempt to locate a customer other than through the email address provided.
These Terms and Conditions of Use were negotiated and written in English. Any inconsistency between the Terms and Conditions of Use as expressed in English and any other language shall, to the full extent permitted by applicable law, be resolved by reference to the English version. Les parties ont convenu de rediger cette entente en anglais.
These Terms and Conditions of Use (including the items incorporated by reference and modifications that may be made from time to time), constitute the entire agreement between LiveMosaic and you regarding LiveMosaic Products or Services, and supersedes all prior agreements between you and LiveMosaic regarding the subject matters hereof.
Any item or service furnished by LiveMosaic in furtherance of these Terms and Conditions of Use, although not specifically identified in them, shall nevertheless be covered by these Terms and Conditions of Use unless specifically covered by some other agreement entered into in written or electronic form between you and us.
Any modification or change in these Terms and Conditions of Use proposed or offered by you shall not become a part of these Terms and Conditions of Use unless accepted in a writing dated after the effective date of the applicable Terms and Conditions of Use and signed by an authorized officer of LiveMosaic.
Should there be any conflict in terms between this Agreement and any other document, the terms and conditions set forth in this Agreement shall govern.
Any references that are singular or plural and any references that are masculine, feminine, or neuter in gender, are meant to be used interchangeably as the context of the sentence might imply.
Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law must be commenced within one year after the cause of action accrues.
As provided in the Digital Millennium Copyright Act of 1998, we have designated the following individual for notification of potential copyright infringement regarding Web sites hosted by LiveMosaic: support@LiveMosaic.com
If you believe content hosted by LiveMosaic infringes a copyright, please provide the following information to the person identified above (17 U.S.C. § 512): (i) A physical or electronic signature of the copyright owner or authorized agent; (ii) Identification of the copyrighted work(s) claimed to have been infringed; (iii) Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) Information regarding how we may contact you (e.g., mailing address, telephone number, e-mail address); (v) A statement that the copyright owner or its authorized agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and made under penalty of perjury, and, if an agent is providing the notification, a statement that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You agree to reimburse LiveMosaic for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by LiveMosaic.
LiveMosaic is not responsible for misprints, errors or omissions in its advertising and promotional materials.
If you have designated a person (whether by email, orally, by registering such person with LiveMosaic, or by granting such person access to your username and password) to have access to your Private Website, in the possession or control of LiveMosaic, you hereby grant LiveMosaic the right to give that person access to your Private Website, including without limitation in the event of your death or incapacity
This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (i) such provision will be interpreted, construed, or reformed to the extent reasonably required to render it valid, enforceable, and consistent with the original intent underlying such provision and ii) such invalidity or unenforceability will not affect the validity or enforceability of any other provision of this Agreement and all such provisions shall remain in full force and effect.
You must notify us about any billing problems or discrepancies within sixty (60) days after they first appear on the statement you receive from your bank or credit card company or other billing company. Send such notification to us at the LiveMosaic Contact Information indicated in Section 33 (LiveMosaic Contact Information) below. If you do not bring such problems or discrepancies to our attention within that sixty (60) day period, you agree that you waive the right to dispute such problems or discrepancies.
LiveMosaic reserves the right to change these Terms of Use at any time by posting new Terms of Use at this location.
If you do not agree to be bound by LiveMosaic’s Terms and Conditions of Use as Published by LiveMosiac from time to time, your sole and exclusive remedy is to discontinue using LiveMosaic Products or Services.
If you wish to cancel your LiveMosaic license after a change in the Terms and Conditions of Use, you must do so in writing or by email within thirty (30) calendar days after your next Use of a LiveMosaic Product or Service following the change in the Terms and Conditions of Use. For this type of cancellation you will receive a pro-rata refund for the unused portion of your LiveMosaic license as of your date of notice. You acknowledge and agree that if you do elect to cancel your license within this specified period after a change in the Terms and Conditions of Use, or if you cancel your license or fail to renew an expired or terminated license for any reason, LiveMosaic may delete any information that LiveMosaic has obtained through your Use of LiveMosaic Products or Services, including without limitation, your site's stories, photos and videos, LiveMosaic will not have any Backup Data available for your Use.
You can send e-mail to LiveMosaic with any questions relating to these Terms of Use at support@LiveMosaic.com.