THE TERMS OF THIS USER AGREEMENT (“TERMS”) GOVERN YOUR USE OF OUR SERVICE.
- ACCEPTANCE OF TERMS
1.1 Point Mask, Inc. (“Point Mask”, “We” or “Our”) provides its Service (as defined below) to You through its web site located at www.PointMask.com (the “Site”), subject to these Terms.
1.2 By accepting the Terms, or by accessing or using the Service or Site, You represent and acknowledge that You have read, understood, and agree to be bound by these Terms. If You are accessing or using the Service or Site on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to these Terms, in which case the terms “You,” “Your” or related capitalized terms herein shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
1.3 You acknowledge that these Terms constitute a contract between You and Point Mask, even though it is electronic and is not physically signed by You and Point Mask. You further acknowledge that these Terms govern Your use of the Service.
- DESCRIPTION OF SERVICE
The “Service” includes (a) the Site, and (b) any other services provided to by Point Mask (collectively, “Content”).
- GENERAL CONDITIONS/ACCESS AND USE OF THE SERVICE
3.1 Subject to the terms and conditions of these Terms, You agree to access and use the Service only as contemplated by these Terms.
3.2 You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms; (b) modify, adapt or hack the Service to falsely imply any sponsorship or association with Point Mask, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (c) use the Service in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (d) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (f) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (g) attempt to use any method to gain unauthorized access to any part of the Site; (h) unless otherwise explicitly agreed to in writing by Point Mask, use the Site or any content obtained from it to develop, as a component of, any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (i) use automated scripts to collect information from or otherwise interact with the Site or the Service; (j) deep-link to the Site for any purpose (other than Point Mask’s home page), unless expressly authorized in writing by Point Mask; or (k) try to use, or use the Service in violation of these Terms.
3.3 To be eligible to use the Service, you must meet the following criteria and represent and warrant that you: (1) are 18 years of age or older; (2) are not currently restricted from the Service; (3) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; and (4) will not violate any rights of Point Mask, including intellectual property rights such as copyright or trademark rights.
3.3 You are responsible for all information, data, text, messages or other materials that transmit to or through the Service.
3.4 Point Mask’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
- DATA PRIVACY AND SECURITY
4.1 In providing You the Service We shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your data and the personal data of Your end-users.
- INTELLECTUAL PROPERTY RIGHTS
5.1 Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith.
5.2 You own the information you provide Point Mask or input on third-party websites through the Service. You grant Point Mask a nonexclusive, revocable, worldwide, perpetual, unlimited fully paid up and royalty-free right to us to use copy, prepare derivative works of, distribute, publish, remove, retain, add, process, or analyze the foregoing described information/data/images (collectively, “information”) for the sole purpose of providing You the Service. By providing information to us, You represent and warrant that You are entitled to and authorized to submit the information and that the information is accurate, not confidential, and not in violation of any contractual restrictions or other third party rights.
5.3 Point Mask shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You.
- THIRD PARTY SERVICES
6.1 External Sites. The Service may contain links to, or otherwise may allow You to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Our Service. If You decide to access and use such Other Services, be advised that Your use is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Your data. Point Mask is not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any such Other Services, or Your reliance on the privacy practices or other policies of such Other Services.
- BILLING, PLAN MODIFICATIONS AND PAYMENTS
7.1 Billing and Payments. Unless otherwise agreed to in writing by Point Mask, the Service is made available on a pay-as-you-go basis and all invoices emailed to You are due and payable upon receipt.
7.2 Taxes. Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Point Mask based on its income. We will invoice You for such Taxes if we believe we have a legal obligation to do so.
8 CANCELLATION AND TERMINATION
8.1 Point Mask reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or terminate your account or any part thereof (or Your use of the Service), and remove and discard any of Your content within the Service if We believe that You have violated these Terms. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of Service, and may be referred to law enforcement authorities. Point Mask shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.
- DISCLAIMER OF WARRANTIES AND LIABILITY
9.1 THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND POINT MASK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9.2 POINT MASK DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT OR MATERIALS FROM OR RELATED TO THE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR THE SERVICE, SERVERS, OR ANY PLATFORM APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SITE, THE SOFTWARE, OR ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
9.3 YOU ACKNOWLEDGE THAT POINT MASK DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM POINT MASK OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.POINT MASK DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, POINT MASK DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications, problems related to the SERVICE or its use, loss of personal content on the site, lost or undeliverable email, AND FOR ANY OTHER REASON. Under no circumstances will Point Mask be responsible for any loss or damages, including, but not limited to personal injury or death, resulting from use of the Site or the Service, or any interactions between users of the Site or the Service, whether online or offline.
10. LIMITATION OF LIABILITY
10.1 NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL POINT MASK OR ITS AFFILIATES OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER POINT MASK AND THE FOREGOING SPECIFIED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, POINT MASK’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OUR SERVICE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENT MADE ON THE PROJECT GIVING RISE TO YOUR CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POINT MASK’S POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF POINT MASK WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.
10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, POINT MASK’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11.1 Indemnification by You. You agree to defend, indemnify, and hold harmless Point Mask from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, or Your and Your end users’ access to, use, misuse or illegal use of the Service. Point Mask will provide You notice of any such claim, suit, or proceeding. Point Mask reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist Point Mask’s defense of such matter.
12. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
Either party may assign or transfer these Terms, in whole or in part, without restriction, provided the assignee agree to be fully bound by these Terms. These Terms supersede prior versions of these Terms, or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties). We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of such changes and direct You to the latest version.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
14. EXPORT COMPLIANCE AND USE RESTRICTIONS
Certain Content and software components of the Service may be subject to U.S. export control and economic sanctions laws. If You are subject to U.S. laws, You agree to comply with all such laws and regulations as they relate to such software and Content, and access and use of the Service. You shall not access or use the Service if you are located in Burma (Republic of the Union of Myanmar), Cuba, Iran, Libya, North Korea, Sudan, or Syria (the “Prohibited Jurisdictions”), and You shall also not provide access to the Service to any government, entity or individual located in the Prohibited Jurisdictions.
15. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 3 (General Conditions/Access and Use of the Service), 5 (Intellectual Property Rights), 7 (Billing, Plan Modifications and Payments), 8 (Cancellation and Termination), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Assignment; Entire Agreement; Revisions), 13 (Severability), 14 (Export Compliance and Use Restrictions), 15 (Relationship of the Parties) 17 (Governing Law) and 18 (Arbitration of Disputes) will survive any termination of these Terms.
17. GOVERNING LAW
These Terms shall be governed by the laws of the State of Michigan without regard to conflict of laws principles.
18. ARBITRATION OF DISPUTES
If we cannot amicably resolve any legal dispute or damage claim that should arise from your interactions with the Site, the Service, and/or Point Mask,you agree to resolve any such dispute or damage claim in the State courts located in Oakland County, Michigan or the Federal Courts located in Wayne County, Michigan.
19. FEDERAL GOVERNMENT END USE PROVISIONS
If you are a U.S. federal government end user, this Service 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 those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to you with only those rights as provided under the terms and conditions of these Terms.