The Service is owned by Xacti CZ s.r.o. (which may be referred to herein as "Crawler.com, " "we, " or "us").
DESCRIPTION OF OFFERED SERVICES
The Services described herein are provided on an AS IS and AS AVAILABLE basis. We disclaim any and all responsibility and liability for the availability, timeliness, security or reliability of the Services which are made available to you for personal, non-commercial, use only. We reserve the right to modify, refuse, suspend or discontinue the Service(s) with or without notice at any time, for any reason and without liability.
Classic Start 8: This free application provides a Windows® 7 style start menu for the Windows® 8 user interface. Classic Start 8 works seamlessly with Windows® 8 and is the perfect alternative for those who prefer the traditional start menu style.
Crawler 2012 Toolbar: Choose from a variety of custom-themed toolbars featuring links to relevant websites, tools and more.
Crawler Toolbar: Enhance your Internet experience and your computer’s desktop environment with feature-packed, free Crawler Toolbar. Includes free plug-ins like Desktop Weather, Email Notifier, Download Manager, RSS Feed Reader, Screensavers, Fun Ball, Desktop Notes, and more.
Desktop Notes: Organize and remember your important events, meetings and memos with colorful sticky notes.
Desktop Weather: Get current weather information – forecasts, maps, storms and traffic news for your hometown or anywhere else, right on your desktop.
Fun Ball: Enjoy playing ball right on your desktop, comes with a selection of ball types, colors and sizes.
IM ToolPack: Capture and edit screenshots, then share them through instant messages and emails, or post them on social networking sites, blogs, forums and websites. Also includes spell check for outgoing messages and malware security check for incoming links.
Crawler Parental Control: Monitor and control user activity on your computer. Features content control, time control, usage logging and email notifications, application usage restrictions and system restrictions.
Radio & MP3 Player: Listen to internet radio streams ad record your favorite songs & radio shows, listen to the music stored on your PC and make playlists.
Screensavers: Enjoy animated 3D and colorful slideshow screensavers, 1,000’s to choose from.
Crawler Smileys: It’s a fun way to express yourself in instant messages and emails. Pick from 1,000’s of animated smileys and eCards.
Web Security Guard: Prevent access to websites reported as dangerous and protect your computer from malware infection. Anti-Phishing Protection feature tracks and blocks phishing attempts on your computer and sends logs about the websites you visit.
Classic Start 8 Website: Download Classic Start8 application right from the website. Access FAQs and informative articles.
Crawler Website: A customizable portal page with search functions and links leading to timely news and information, can be used as a personal homepage. The website consists of a search engine service with access to the search results of many search providers on the Internet and provides access to free Crawler webmail service.
Crawler Webmail: Enjoy free webmail service that includes data storage, notes, organizer, photo sharing and easy folder management with spam and virus protection. Standard storage capacity is 5GB for US, CA and UK residents and 2GB for other locations. Optional paid service includes larger storage capacity and daily backups.
Crawler Parental Control Website: Website for Crawler Parental Control users with links to other Crawler.com products.
Crawler Smileys Website: The website features a refer-a-friend email page, help section and Crawler Smileys download page.
FunUtilities Website: FunUtilities website features a huge collection of free downloadable desktop utilities such as screensavers, wallpapers, cursors, games and more.
IM ToolPack Website: Access stored images you created with IM ToolPack.Manage and share them with others.
Radio & MP3 Player Website: Radio & MP3 Player can be downloaded from the website and there’s a help section for users.
Web Security Guard Website: Web Security Guard software can be downloaded right from the website. Look up website reports in our extensive database, access our help section and help promote Web Security Guard.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. We reserve the right to modify, refuse, suspend or discontinue the Service with or without notice at any time, for any reason, and without any liability. Terms related to payment of fees (if any) are specified in the Terms of Offer and may be updated by us from time to time. PLEASE SEE OTHER DISCLAIMERS BELOW.
When you complete the registration process and/or click the "Download" button for any of our Services, you download our software, obtain a software license to use our product, create an account and agree to be bound by this TOU/EULA. If you do so on behalf of an entity of any kind, you are representing and warranting that you have the authority to accept this TOU/EULA on behalf of the entity, and the authority to bind the entity to this TOU/EULA. Your license and account allow you to participate in certain activities on the website.
To create your account, you must select a unique login name and password (“User Identification”). You may not use a login name that is used by someone else, and your login name cannot be vulgar, or otherwise offensive, or be used in any way that violates the TOU/EULA. You may not provide false information during the registration process. You must provide truthful and accurate information in creating your account. You are solely responsible for all activity on your account and for the security of your login name, password, computer system and/or related system and agree to keep this information secret. You may not reveal your password to other users. You agree to indemnify and hold us harmless for any improper or illegal use of your account. This includes illegal or improper use by someone to whom you have given permission to use your account. Your account is at risk if you let someone use it inappropriately and your account in any of our Services is subject to termination if you or anyone using your account violates the TOU/EULA. If you believe your account has been accessed without your authorization, you must notify us immediately by contacting Customer Support.
YOUR CONTENT IS YOUR RESPONSIBILITY: We disclaim any responsibility related to the content of files uploaded, stored or transmitted by you or other users. Your files are your responsibility: By uploading, storing, saving or transmitting your files, you are assuming full responsibility for the consequences of doing so.
You are solely responsible for any and all conduct in entering, altering, deleting, modifying, sending or retrieving files, data, text information, screen names, graphics, photos, profiles, audiovisual clips, or any other content submitted, posted, displayed, transmitted, saved, stored or shared using your account or User Identification, including login, password and your account with us. We disclaim any responsibility related to the content of files uploaded, shared or transmitted and saved and stored by you or other users.
We do not claim ownership of any content you submit, post, transmit, store or share using our Services.
THIRD PARTY FEES: You may incur access or data or other fees from third parties, such as your mobile carrier or Internet provider, in connection with your use of our Services (depending upon your service plan with such entities) as well as automatic upgrades and updates of Mobile software. You consent to such upgrades and updates by using our Services, and agree that these Terms will apply to all such upgrades or updates. You are solely responsible for any such incurred third party fees. For example, uploading files for storage from a mobile device (including photos, videos, or other content) may use additional bandwidth or data usage depending on your service plan with your mobile device provider. We have no control over your service plans with your third party service providers. You understand and acknowledge that we are not responsible or liable for any such additional or third party charges which may be incurred by or in connection with the use of our Services.
IM ToolPack allows users to post screenshots on blogs, forums or other websites. Some of these may charge separate fees, which are not included in any subscription or other fees that you may pay to us. Some of these may restrict or prohibit such postings entirely. IM ToolPack is intended to work with third party instant messaging software and webmail services. Any separate charges or obligations you incur in your dealings with these third parties are your responsibility.
CANCELLING YOUR ACCOUNT
To Cancel: If you decide that you no longer wish to use downloads from us, you can uninstall the software by using the add/remove function within Windows®. If you uninstall IM ToolPack as an anonymous user, your temporary user account will be automatically canceled. If you uninstall IM ToolPack after you converted a temporary account to a full account, you can choose to cancel or keep your full account. Free user accounts on Crawler Webmail will automatically cancel after 90 days of non-use. Paid user accounts on Crawler Webmail will automatically cancel 90 days after the paid service expires. This TOU/EULA will automatically terminate when you cancel your account or when we no longer provide the Services.
You understand and agree that the cancellation of your account or a particular subscription is your sole right and remedy with respect to any dispute with us. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this TOU/EULA or our enforcement or application of this TOU/EULA; (2) the content available through this site or any change in such content; (3) your ability to access and/or use this site; or (4) the amount or type of any fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.
You consent that we may provide you with required notices, benefits and account information through electronic disclosure via email and postings on our website, or at the email address provided at the time of sign up (or as amended at our website by you from time to time).
INTELLECTUAL PROPERTY RIGHTS/LICENSE
Copyright Notice. © Crawler Group, 2013. All rights reserved.
The Service is provided and operated by us. The Service, and all materials accessible through the Services, including websites, website content and information, graphics, code, images, text, illustrations, logos, audio and video files (collectively "Intellectual Property"), are protected by copyrights, trademarks, service marks, or other proprietary rights owned or licensed by us. The compilation (meaning the collection, arrangement, and assembly) of all materials on the Services is our exclusive property and is protected by U.S. and foreign laws and international copyright treaties. Material from the Services may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. Use or modification of our Intellectual Property in any form, including but not limited to use on any other website or networked computer environment, without our express written authorization is a violation of our copyrights and other proprietary rights and is strictly prohibited. Any copies of documents contained on this website or portions thereof that you make must include the above copyright notice.
Documents published on this website may contain other proprietary notices or describe products, services, processes or technologies owned by us or by third parties. Except as expressly set forth herein, nothing contained herein shall be construed as us granting to the user a license under any copyright, trademark, patent or other intellectual property right of ours or any third party. Except as expressly granted to you under this TOU/EULA, all rights are reserved by us;
You may not link to this website, without prior consent from us, which consent may be withdrawn by us at any time, with or without notice, in our sole discretion; and
By submitting, posting, transmitting or sharing content produced with IM ToolPack, you grant to Crawler.com a non-exclusive, royalty-free, transferable, worldwide right and license to use, copy, modify, prepare derivative works from, distribute, publicly display and publicly perform and process content through Crawler.com Services, including but not limited to, adapting the format for suitable display, displaying the content in search results, or posting a link to content you have designated as public.
Notification and Procedure for Making Claims of Copyright Infringement. You may notify us if your work has been copied in a way that you believe constitutes copyright infringement. In compliance with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2), we have designated a Copyright Agent to receive any such notification. Our Copyright Agent may be contacted at:
If you wish to notify our Copyright Agent of a claim of copyright infringement, please provide written notice. Your notice must contain the following information:
- A physical or electronic signature of the person authorized to act on behalf the copyright owner;
- Identification or description of the copyrighted work you claim has been infringed and ownership information;
- Identification or description of the work you believe is infringing on your copyrighted work and enough information to assist us in locating the allegedly infringing work, including URL, link, web address, and any other identifying information;
- Your name, address, telephone number, and email address;
- A statement and assertion that you have a good faith belief that the use by the person you believe has infringed on your copyright is not authorized by the copyright owner, its agent, or the law; and
- Your statement, made under penalty of perjury, that the information contained in your notification is accurate, and that you are the copyright owner or are authorized to act on the owner's behalf.
Trademarks. "Crawler," "Crawler.com," and other marks, logos, and service names are our trademarks, trade names, and/or trade dress or the trademarks and/or trade dress of our affiliates. None of our trademarks or our affiliates' trademarks may be used in connection with any product or service that is not ours or our affiliates', in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits us, or our affiliates. All other trademarks viewable from a search performed using the Service are the trademarks and/or registered trademarks of their respective owners.
YOUR RIGHTS, RESPONSIBILITIES AND RESTRICTIONS
By installing and/or using our Services, including software or toolbars (collectively "software"), you agree to the following:
i.License. By submitting, posting, transmitting or sharing content produced with IM ToolPack or other of our services, you grant to us a non-exclusive, royalty-free, transferable, worldwide right and license to use, copy, modify, prepare derivative works from, distribute, publicly display and publicly perform and process content through our Services, including but not limited to, adapting the format for suitable display, displaying the content in search results, or posting a link to content you have designated as public. We grant you a non-exclusive license to install and use our software solely for personal use and only for the purpose of accessing the Service. We and our software licensors/suppliers reserve the right to add additional features or functions to the software at any time, without requesting your approval. We may require the update of software on your computer when new versions of the software are released or new enhancements are available. Updates may occur automatically when you use the Service. Changes to this End User License Agreement may be made by us and will be posted on the website. Your continued use of the software will constitute consent to the revised terms. We are under no obligation to support software for which a license has not been purchased and paid for in full. We may at any time suspend or terminate this license and disable the software.
ii. Restrictions. You may not reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software for any reason. You may not modify the software in any way. You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), create derivative works or in any way transfer the software or use the software for the benefit of any third party through any outsourcing or time-sharing arrangement or through the operation of any service bureau. You understand that the software is licensed not sold, and that the software and all rights not expressly granted herein are reserved to us and our licensors/suppliers. We reserve the right to remove or replace any uploaded files, and assume no liability for lost or misplaced file URLs. Changing IM ToolPack linking codes is prohibited without prior permission. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of us and our affiliates without our express written consent. You may not use any Meta tags or any other "hidden text" utilizing our name or trademarks or those of our affiliates without our express written consent or that of our affiliates. The materials provided herein are for personal, non-commercial use only. Documents published on this website may contain other proprietary notices or describe products, services, processes or technologies owned by us or by third parties. Except as expressly set forth herein, nothing contained herein shall be construed as us granting to the user a license under any copyright, trademark, patent or other intellectual property right of ours or any third party. Except as expressly granted to you under this TOU/EULA, all rights are reserved by us. You may not link to this website without prior consent from us, which consent may be withdrawn by us at any time, with or without notice, in our sole discretion.
iv. Export Controls. The software and Services hereunder may be subject to controls or restrictions by the United States or other countries or territories. You agree to (i) comply with the requirements of the U.S. Department of Commerce (DOC) Export Administration Regulations (EAR) (see http://www.bis.doc.gov) and all applicable international, national, state, regional and local laws, and regulations, including without limitation any applicable import and use restrictions, (ii) not export, or re-export, directly or indirectly, or allow access to the software or Services to any country outlined in the EAR, nor to any person or entity on the DOC Denied Persons, Entities and Unverified Lists, the U.S. Department of State's Debarred List, or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists, and (iii) not license, sell, provide or distribute the software or Services or access thereto for use in connection with warfare or terrorism of any kind in any country, chemical, biological, or nuclear weapons or missiles capable of delivering such weapons.
We may discontinue, suspend or modify any of our Services, any feature included in the Services, or the availability of the Services on any particular device or communications service, at any time and without notice to you. If any third party makes an intellectual property infringement claim relating to the Services, we reserve the right to immediately terminate your account, service plan or software license, including all paid or free versions. While not obligated to do so, we will endeavor to communicate any such actions to you by either sending you an email or by posting relevant information to the Websites.
ACCEPTABLE USE POLICY
ILLEGAL, UNAUTHORIZED, OR FRAUDULENT CONTENT OR ACTIVITIES
This Section defines the Acceptable Use Policy ("Policy") relating to the Service. You are responsible for continual compliance with this Policy. You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations. We take no responsibility for third party content, nor do we have any obligation to monitor such third party content. Nonetheless, we reserve the right to monitor content at any time for any reason. Further, we reserve the right to remove objectionable or personally identifiable information. We will not be responsible or liable for the exercise or non-exercise of your rights under this TOU/EULA.
For example, you may not use the Services to create, submit, transmit, distribute, provide access to, or store any files, information or material that:
- Violates a trademark, copyright, trade secret or other intellectual property rights of others
- Violates the privacy, publicity or other personal rights of others
- Impairs the privacy of communications
- Contains obscene, offensive, illegal or inappropriate content
- Constitutes pornography
- May be considered threatening, abusive or hateful or promoting such views or behaviors
- Violates export control laws or regulations
- Encourages conduct that would constitute a criminal offense or give rise to civil liability
- Causes technical disturbances to the Service, including, but not limited to, adware, spyware, introduction of viruses, worms or other destructive elements
- Assists or permits any persons in engaging in any of the activities described above
- Involves deceptive online marketing
If you become aware of any such activities, you are obligated to immediately notify us.
We reserve the right to suspend or terminate access to the Services upon notice of a violation of this Policy. Indirect or attempted violations of this Policy, and actual or attempted violations by a third party on behalf of you, shall be considered violations of this Policy by you.
We have the right, but not the obligation, to monitor any activity or content associated with the Service. We may investigate any reported violation of its policies and take any action we deem appropriate, including terminating your access to the Service without notice. Any of the following, without limitation, would be a violation of the TOU/EULA and our policies and guidelines, and upon our determination, in our sole discretion, that you have engaged in any of the following, we shall terminate your access to the Service without notice, and to the extent applicable, remove, or disable access to, any material that is in violation of the following or claimed to be infringing or to be the subject of infringing activity. Accordingly, you expressly represent, warrant and covenant that you shall not upload, post or transmit to or distribute or otherwise publish through the Service any materials which (i) restrict or inhibit any other user from using and enjoying the Service, (ii) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law, (iv) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right, (v) contain a virus or other harmful component, or (vi) constitute or contain false or misleading indications of origin or statements of fact.
We may report any activity or distribution we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. To cooperate with governmental requests, to protect our systems and users, to ensure the integrity and operation of our business and systems, or in response to subpoenas, court orders, or legal requirements, we may access and disclose any information we consider necessary or appropriate, including your contact details, IP addressing and traffic information, posted content, and web usage paths and may retain such information for appropriate law enforcement officials or other third party enforcement personnel to the extent permitted by applicable federal, state and local laws. By using the Service you expressly consent to the foregoing use and disclosure and to hold us and our affiliates harmless for any such actions.
You agree to indemnify, defend and hold us harmless as well as any parent company, subsidiaries, affiliates (and each of our or their officers, directors, managers, employees, agents, representatives, information providers and licensors), against liability related to any claims, costs, losses, damages (actual and consequential), judgments, limitation costs and expenses, demands, including but not limited to reasonable attorney's fees, arising from or in any way related to any alleged violation of this TOU/EULA by you, use of the Services by any other person through you or using your computer or your account or license, claims by third parties related to your use of the Services or in connection with your transmission of any content on or through the Service. This Section shall survive termination of this TOU/EULA.
YOU ARE USING THE SERVICES AT YOUR OWN SOLE RISK AND WE ARE UNDER NO OBLIGATION TO PROVIDE YOU WITH ANY SUPPORT, ERROR CORRECTIONS, UPDATES, UPGRADES AND/OR ENHANCEMENTS OF THE SERVICE.
YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. THE USER OF THIS WEBSITE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS WEBSITE, THE SERVICES AND THE INTERNET GENERALLY.
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR OWNERS, OFFICERS, MANAGERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES REPRESENT OR WARRANT (I) THAT THE SERVICES OR INFORMATION OR CONTENT PROVIDED THROUGH THE SERVICES WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS OR MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE, OR FAULT-FREE; (II) THAT THE SERVICES WILL BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, OR SECURE; (III) THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES WILL BE FREE FROM VIRUSES, "WORMS," "TROJAN HORSES" OR OTHER HARMFUL PROPERTIES; (IV) THAT THE SERVICES ARE NONINFRINGING. WE AND OUR AFFILIATES HEREBY DISCLAIM, AND YOU HEREBY WAIVE AND RELEASE US AND OUR AFFILIATES FROM, ANY AND ALL OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES IN CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THIS TOU/EULA OR THE SERVICES.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR OWNERS, OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (REGARDLESS OF THE FORM OF ACTION), INCLUDING WITHOUT LIMITATION ANY SUCH ACTION ARISING OUT OF (I) USE OF THE SERVICES BY ANY PERSON, INCLUDING BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, ANY INFORMATION, (II) ANY USE OR INABILITY TO USE THE SERVICE FOR WHATEVER REASON, INCLUDING BUT NOT LIMITED TO COMMUNICATIONS FAILURE OR ANY OTHER FAILURE WITH TRANSMISSION OR DELIVERY OF ANY INFORMATION ACCESSED THROUGH THE SERVICE, OR (III) ANY GOODS OR SERVICES DISCUSSED, PURCHASED, OBTAINED, OR PARTICIPATED IN, DIRECTLY OR INDIRECTLY, THROUGH THE SERVICES, IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT SOME REMEDY IS REQUIRED BY APPLICABLE LAW WITH RESPECT YOUR USE OF THE SERVICES, YOUR EXCLUSIVE REMEDY REGARDING THE SERVICES SHALL BE THE REPLACEMENT OF ANY SUCH SERVICES OR COMPONENT OF THE SERVICES FOUND TO BE DEFECTIVE. IN NO EVENT SHALL OUR CUMULATIVE LIABILITY OR OUR AFFILIATES' CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF DIRECT DAMAGES RELATING TO THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID FOR USE OF THE SERVICES DURING THE ONE-YEAR PERIOD PRECEDING THE CLAIM.
By accessing or using the Service(s), You:
- agree that the substantive laws of the state of Florida, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this TOU/EULA;
- agree that you may not assign any or all of your rights and obligations under this TOU/EULA without our prior written consent, which may be withheld in our sole discretion;
- agree that all provisions of this TOU/EULA relating to ownership of intellectual property and proprietary rights, warranty disclaimers, limitation of liability, and indemnification shall survive the termination of your use or access to the website, for whatever reason;
- agree that nothing in this TOU/EULA shall be deemed to convey any third party rights or benefits;
- agree that except as otherwise required by law (in which case Florida statutes of limitation shall apply), the arbitration of any cause of action or claim you may have with respect to the Service, this TOU/EULA or this website must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred;
- agree that if any portion of this TOU/EULA is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted and that the other provisions of this TOU/EULA remain in full force and effect;
- agree that no waiver of any breach of any agreement or provision of this TOU/EULA, nor any failure to assert any right or privilege contained in this TOU/EULA, shall be deemed a waiver of any preceding or succeeding breach of any agreement or provision;
- agree that the section titles in this TOU/EULA are for convenience only and have no legal or contractual effect; and
- agree that this TOU/EULA (including all policies, notices and other terms incorporated into this TOU/EULA by reference) constitutes the entire agreement between you and us with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral.
DISPUTES AND ARBITRATION PROVISION. This TOU/EULA shall be construed, enforced and determined according to the laws of the State of Florida without regard for choice of law provisions. All parties and/or users understand and agree that arbitrations on a class action basis against Company or its affiliates are specifically prohibited and there shall be no right or authority for any Claims to be arbitrated on a class action basis, and all users specifically waive their rights to participate in any such arbitrations on a class action basis. All parties and/or users agreeing to this TOU/EULA for any or all Services agree that any and all disputes, causes of actions or claims arising out of, in connection with or in any way related to this Agreement, or the products or services associated with this Agreement, shall be fully and finally settled in binding arbitration proceedings under the Rules of Arbitration of the American Arbitration Association in force at the time this Agreement is entered, by one arbitrator appointed in accordance with said Rules, with the specification that any such arbitral award shall be enforceable by any court having jurisdiction thereof. All parties seeking relief are to be bound by this arbitration provision as the sole method to determine any disputes arising from, in connection with, or related to this Agreement, including any actions to enforce or interpret this Agreement. Exceptions: You and we agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy or unauthorized use; and (3) any claim by us for injunctive relief. The arbitration proceeding shall be construed in accordance with the applicable laws of the American Arbitration Association. All Arbitration proceedings shall be held in Ft. Lauderdale, Florida.
All parties and/or users agreeing to this TOU/EULA agree that any and all disputes arising out of, in connection with or in any way related to this Agreement, or the products or services associated with this Agreement, shall be limited as to discoverable information which is requested pursuant to a subpoena, arbitration, discovery, or any other legal proceeding, by the following:
i) All relevant and discoverable information or data (in any form) shall be strictly limited to the dates of use by the user of the products and services offered hereunder who is requesting any such information. No discovery, including eDiscovery, shall be provided for timeframes outside the timeframe of use of the requesting party, and shall be limited to information or data that is reasonably accessible to us. All parties and users agree that these limitations are reasonable.
ii) All relevant and discoverable information or data (in any form) requested for such applicable dates shall be provided in the format in which it is stored or archived, and shall not be required to be provided in any other format, and no reports of any kind not used regularly in the course of business shall be requested or created/produced.
iii) We may request that parties and/or users cooperate in good faith regarding formulation of appropriate search terms and protocols in advance of any information or data search, including pre-search formulating of search terms, including semantic synonyms, search protocols, and post-search error sampling. Any production shall then be provided referencing such agreed protocols in lieu of individual discovery request responses.
GOVERNING LAW AND JURISDICTION
Xacti CZ, s.r.o. operates under the regulatory guidelines of the US & Czech Republic.
Last Updated: January 26, 2017