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OYOGI TERMS OF USE
AND END USER LICENSE
AGREEMENT
ACCEPTANCE OF TERMS
IMPORTANT: PLEASE READ THESE TERMS CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF UTOPIAN'S QUESTION AND ANSWER SERVICE MARKETED UNDER THE TRADEMARK "OYOGI," INCLUDING THIS WEBSITE, RELATED SOFTWARE AND INFORMATION (COLLECTIVELY, THE "SERVICES" or "Service"). YOU must agree to the terms and conditions of this Website Terms of Use and End User License Agreement, which includes the Privacy Policy (collectively, the "Agreement") BEFORE USING THE SERVICES. The Agreement is a binding agreement between you and UTOPIAN.
BY USING THE SERVICE, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, which includes the Privacy Policy, AND YOU AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT INDICATE YOUR ACCEPTANCE, AND DO NOT USE THE SERVICES.
© 2005, utopian software concepts, inc., ("Utopian"), a Virginia corporation located at 4449 Cox Road, Glen Allen, Virginia 23060.
SERVICES
The Information provided by the Services is derived from various publicly available sources (the "Information") and is provided by Utopian or independent contractors ("Responders") to assist in your research. The Information provided via the Services is not intended to substitute for informed professional medical, psychiatric, psychological, tax, legal, investment, accounting, or other professional advice. If you submit a question or comment on such a topic, we will assume you are interested in soliciting and receiving or giving general information rather than professional advice. You should bear in mind that the applicability of such general information might vary substantially in different states and according to the individual factual circumstances surrounding a particular question or comment. Accordingly, if you desire or require professional advice, please consult a qualified provider who is licensed in your state or country.
The Information has not been verified, however, and neither Utopian nor Responders represent that it is accurate, correct, complete, reliable, or otherwise valid. Utopian does not endorse or recommend, and expressly disclaims liability for any product, manufacturer, distributor, service or service provider mentioned in any question, comment or answer. Further Utopian does not endorse or support any opinion expressed in a question, comment, or answer.
PROPRIETARY RIGHTS
Intellectual Property and Copyright Infringement Notice
The Services is controlled and operated by Utopian. The Service, and all materials on the Services including code, images, text, illustrations, logos, audio and video files (collectively "intellectual property"), are protected by copyrights, trademarks, service marks, or other proprietary rights which are either owned by Utopian, or owned by other parties who have licensed their intellectual property to Utopian. The compilation (meaning the collection, arrangement, and assembly) of all materials on the Services is the exclusive property of Utopian and 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 Utopian's intellectual property in any form, including but not limited to use on any other website or networked computer environment, without express written authorization is a violation of Utopian's copyrights and other proprietary rights and is strictly prohibited.
Notification and Procedure for Making Claims of Copyright Infringement
You may notify Utopian 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), Utopian has designated a Copyright Agent to receive any such notification. Utopian's Copyright Agent may be contacted at:
Utopian Software Concepts, Inc.
c/o
Kris R. Keeney, Esq.
Copyright Agent
4510 Cox Road, Suite 109
Glen Allen, Virginia 23060
If you wish to notify Utopian's Copyright Agent of a claim of copyright infringement, please provide written notice. Your notice must contain the following information:
Trademarks
"Utopian," "Oyogi" and other Utopian marks, logos, and service names are trademarks and/or trade dress of Utopian or its affiliates. None of Utopian's or its affiliates' trademarks may be used in connection with any product or service that is not Utopian's or its affiliates', in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits Utopian, or its affiliates.
Software License
The proprietary software associated with the Services ("Software"), which shall be deemed to include any enhancements or modifications thereto and any related documentation, is a copyrighted work. Subject to your compliance with all of the terms and conditions of this Agreement, and in consideration of you promises reflected in this Agreement, Utopian grants to you a personal, nonexclusive, nonassignable and nontransferable license to use the Software to and on a single computer and to use the Software solely to use the Services as permitted under this Agreement. All rights not expressly granted to you by the foregoing sentence are reserved by Utopian. Without limiting the generality of the foregoing, you may not modify, distribute, sublicense, rent, lease, or create derivative works based on the Software or any part thereof. You may not reverse engineer, decompile or disassemble the Software. You may not copy the Software other than to make one copy of the Software for back-up purposes. You may not use the Software for any commercial purpose other than in connection with the Services and as permitted hereunder, and not in the operation of a service bureau or for the benefit of any other person or entity, and you may not transfer, sell, assign or convey it to another party without Utopian's prior written consent. You shall maintain all copyright notices, trademark notices, and other proprietary notices on the Software.
You have no ownership rights in the Software. Rather, You have a license to use the Software pursuant to the terms of this Agreement. Title, ownership rights, and intellectual property rights in and to the Software and related documentation remain in Utopian.
Other Licenses
Your Grant
By entering into this Agreement and/or using the Service, or posting any Submission (defined below) you grant Utopian and its affiliates a perpetual, nonexclusive, world-wide, royalty-free, irrevocable and fully sublicensable right and license to store, edit, copy, reproduce, modify, post, translate, transmit, distribute, display, perform, and otherwise use any aspect of your Submissions and corresponding answers, and any or all information, contained therein, for any purpose whatsoever, for internal or external purposes, alone or as part of other works in any form, media, or technology, whether now known or hereafter developed, and to exercise all copyright and rights of publicity over the material displayed in your Submissions.. You also waive any "moral rights" or rights of attribution or integrity in such content. You are not entitled to any compensation for Utopian's use of your Submissions.
Utopian's Grant
Subject to your compliance with all the terms and conditions of this Agreement, and in consideration of your promises reflected in this Agreement, Utopian grants to you a limited license to make personal use of the Service. This license expressly excludes, without limitation, any resale, modification, or commercial use of the Services or any portion thereof or any Submissions and making any derivative works based upon or distributing or copying the Services or any Submissions, except as expressly permitted hereunder. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information of Utopian and its affiliates without express written consent of Utopian. You may not use any meta tags or any other "hidden text" utilizing the name or trademarks of Utopian and its affiliates without the express written consent of Utopian and its affiliates. Any unauthorized use terminates the permission or license granted by Utopian in this paragraph. You may not sell, use, reproduce, modify, edit, translate, publish, perform, display, post, transmit and distribute questions, comments or answers for any public or commercial purpose without the written permission of Utopian.
INDEMNIFICATION
You agree to indemnify Utopian against liability, and to defend, indemnify, and hold harmless Utopian, the Responders and affiliates, and each of their officers, directors, employees, agents, representatives, information providers and licensors, from any claims, costs, losses, damages (actual and consequential), judgments, limitation costs and expenses, including but not limited to reasonable attorney's fees, arising from or in any way related to any breach of this Agreement or any use by you of the Services, or by any other person using the Services through you or using your computer.
NO WARRANTY
YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, with all faults, and THAT the entire risk as to satisfactory quality, performance, accuracy, and effort OF THE SERVICES IS YOURS AND YOURS ALONE.
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, UTOPIAN, THE RESPONDERS, AND AFFILIATES 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. WITHOUT LIMITING THE FOREGOING, NEITHER UTOPIAN, THE RESPONDERS, NOR ANY AFFILIATES, NOR ANY OF THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES REPRESENT OR WARRANT (i) THAT THE SERVICES OR INFORMATION will fulfill any of your particular purposes or needs or MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, RELIABLE, OR ERROR FREE; (ii) THAT THE SERVICES WILL ALWAYS 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) THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF ANY SUBMISSION, RECOMMENDATION, OR OTHER MATERIAL PUBLISHED OR ACCESSIBLE ON OR THROUGH THE SERVICES (v) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND (vi) AGAINST interference with your enjoyment of the serviceS OR THAT THE SERVICE IS NONINFRINGING.
UTOPIAN, THE RESPONDERS AND AFFILIATES HEREBY DISCLAIM, AND YOU HEREBY WAIVE AND RELEASE UTOPIAN, THE RESPONDERS AND AFFILIATES FROM, ANY AND ALL OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR REMEDIES IN CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. THE CONTENT OF THE QUESTIONS AND COMMENTS, IS PROVIDED BY AND IS THE RESPONSIBILITY OF THE PERSON POSTING SUCH ITEMS.
LIMITATION OF LIABILITY
IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL UTOPIAN, THE RESPONDERS OR ANY AFFILIATES, OR ANY OF THEIR OFFICERS, 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) 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 SERVICES 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 SERVICE DISCUSSED, PURCHASED OR OBTAINED, DIRECTLY OR INDIRECTLY, THROUGH THE SERVICES, IN EACH CASE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES SHALL UTOPIAN OR RESPONDERS BE LIABLE TO YOU FOR ANY AMOUNT FOR SERVICES OR INFORMATION PURSUANT TO THIS AGREEMENT, RATHER YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE THE REFUND OF FEES ACTUALLY PAID BY YOU TO UTOPIAN FOR ANY INSTANCE OF USE OF THE SERVICES THAT GIVES RISE TO A CLAIM.
"Submissions" are questions or other comments or postings submitted by you or another user of the Services through, and/or uploaded to, the Utopian's Services. You are responsible for anything you post in any Submission. All Submissions must be accurate and truthful. You may not post in any Submission material that you know or reasonably should know to be false or materially misleading, or that is libelous, defamatory, obscene, vulgar, abusive, harassing, threatening, or otherwise objectionable, or that is solely commercial in nature, or that invades a person's privacy, infringes another person's intellectual property rights, or otherwise violates any law or regulation.
Utopian is not responsible for, and does not represent or endorse the accuracy or reliability of, any opinion, advice, statement, recommendation or other information included in any Submission posted on the Service. Any reliance by you on any such opinion, advice, statement, recommendation or other information in a Submission shall be at your sole risk. You acknowledge that transmission to and from the Services is not confidential and your Submissions may be read or intercepted by others.
Without limiting the foregoing, Utopian retains the right but not obligation in its absolute and sole discretion to screen, edit, or delete any Submission or other content displayed, uploaded to, distributed, or otherwise published through the Services and to prevent or restrict access to the Services for any reason, including to purge Submissions, or take any other action to restrict access to or availability of material.
ACCEPTABLE USE POLICY
ILLEGAL, UNAUTHORIZED, OR FRAUDULENT CONTENT OR ACTIVITIES
This Section defines the Acceptable Use Policy ("Policy") relating to the Services. You are responsible for continual compliance with this Policy. You agree that you will use the Services in compliance with all applicable local, state, national, and international laws, rules and regulations. Furthermore, you agree that you will not submit questions or comments that are unlawful, defamatory, harassing, abusive, fraudulent, obscene, contain viruses, intended to advertise or sell goods or Services, or are otherwise objectionable. You further agree not to submit questions or comments designed to elicit responses that relate to illegal activity or that infringe upon another party's intellectual property rights. Utopian does not edit, screen, filter, modify, or otherwise monitor the content of Submissions in advance of initially posting or displaying such content on the Services. Utopian takes no responsibility for third party content, nor does Utopian have any obligation to monitor such third party content. Nonetheless, Utopian reserves the right to monitor Submissions and other content and not to respond to or use Submissions that violate the foregoing conditions and to delete or edit questions or comments, in whole or in part, from the Services at any time for any reason. Further, Utopian reserves the right to remove objectionable or personally identifiable information from any comments or research questions in its use of such questions and/or comments. Utopian will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
For example, you may not use the Services to create, transmit, distribute, or store 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 or inappropriate content
- Constitutes pornography
- May be threatening, abusive or hateful
- 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 Services, including, but not
limited to, add-ware, spy-ware, introduction of viruses, worms or other destructive elements.
- Assist or permit any persons in engaging in any of the activities described above.
- Involves deceptive on-line marketing.
If you become aware of any such activities, you are obligated to immediately notify Utopian and take all other appropriate actions to cause such activities to cease.
Utopian reserves 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.
Utopian has the right, but not the obligation, to monitor any Submission, activity, and content associated with the Service. Utopian may investigate any reported violation of its policies and take any action it deems appropriate, including terminating your access to the Services without notice. Any of the following, without limitation, would be a violation of the Agreement and Utopian's policies and guidelines, and upon Utopian's determination, in its sole discretion, that you have engaged in any of the following, Utopian shall terminate your access to the Services 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 Services 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.
Utopian may report any activity it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. To cooperate with governmental requests, to protect Utopian's systems and users, to ensure the integrity and operation of Utopian's business and systems, or in response to subpoenas, court orders, or legal requirements, Utopian may access and disclose any information it considers necessary or appropriate, including user contact details, IP addressing and traffic information, posted content, and Web usage paths. By using the Service you expressly consent to the foregoing use and disclosure.
OTHER WEBSITES TO WHICH THE SERVICES LINK OR REFER
The Web changes constantly, and no technique can ever index all pages accessible on the Web. As a result, Utopian cannot guarantee the completeness or accuracy of the websites or URLs to which Utopian's Service link or refer.
Further, the process of including websites in Utopian's Service is largely automatic. Utopian does not screen the websites included in the Service, and these other websites are maintained by persons over whom Utopian exercises no control. For these reasons, Utopian assumes no responsibility for the content of any website or URL included in the Service and is not responsible for errors or omissions or for offensive or objectionable content contained on any website or URL included in the Service.
APPLICABLE LAW; JURISDICTION AND VENUE; ATTORNEYS FEES
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to any principles of conflicts of laws, and you hereby consent to the personal jurisdiction of the state and federal courts of Virginia. The parties express their desire and intent that the Uniform Computer Information Transactions Act ("UCITA") under Virginia code Sections 59.1-501 et seq, does not apply to this Agreement and the transactions contemplated hereby to the extent UCITA conflicts with any provisions in this Agreement. If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.
GENERAL PROVISIONS
Entire Agreement
This Agreement, which includes the Utopian Privacy policy, constitutes the entire agreement of the parties with respect to the subject matter hereto and supersedes and cancels all prior and contemporaneous agreements, claims, representations and understandings of the parties in connection with the subject matter, hereof, oral or written.
Severability
If any provisions of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
No Waiver
Utopian's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Utopian's right to subsequently enforce such provisions or any other provisions of this Agreement. No waiver of any provision of this Agreement shall be effective unless in writing.
Survivability
All provisions of this Agreement 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 Service, for whatever reason.
You acknowledge that your violation of the provisions relating to intellectual property and proprietary rights may cause damage to Utopian which is unquantifiable but nonetheless real and irreparable. Accordingly, in the event Utopian determines in its sole discretion that you have violated or will violate any such provision, Utopian will be entitled to injunctive relief from a court of competent jurisdiction restraining such violation. This right to injunctive relief shall be cumulative and shall not restrict or limit Utopian's ability to resort to any other remedy available under law or equity.
Relationship of the Parties Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract. Your Submissions and the responses you receive relating to the Services do not form the basis for a professional-client relationship, including but not limited to attorney-client, physician-patient, or therapist-patient and are not subject to standards or requirements of confidentiality and/or privilege associated therewith.
No Assignment You shall not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without Utopian's prior written consent. Any such purported assignment or delegation by you without Utopian's prior written consent will be null and void and of no force or effect, unless otherwise expressly consented to by Utopian at its sole and absolute discretion.
Term and Termination This Agreement shall be effective when you check "Yes, I agree to the Oyogi Terms of Service and Privacy Policy" during registration, and shall remain in effect for as long as Utopian makes the Services available to you, unless terminated earlier as provided in this Agreement. Utopian may terminate this Agreement if you have failed to pay required fees or otherwise breach any of the terms under this Agreement. Notwithstanding anything herein to the contrary, upon termination of this Agreement, for any reason, provisions hereunder relating to indemnification, warranty disclaimers, limitation of liability, and other provisions which by their reasonable interpretation are intended to endure beyond termination of this Agreement, shall remain in full force and effect.
Changes to this Agreement Utopian may change any of the terms and conditions contained in this Agreement, including the Privacy policy, at any time in its sole discretion. NOTICE OF MATERIAL CHANGES TO THIS AGREEMENT WILL BE POSTED ON THE SERVICES BEFORE THEY BECOME EFFECTIVE. YOU ARE RESPONSIBLE FOR REVIEWING THE NOTICE AND ANY APPLICABLE CHANGES. YOU AGREE THAT YOUR CONTINUED USE OF THE SERVICE SFOLLOWING ANY CHANGES TO THIS AGREEMENT AND AFTER THE CHANGES TAKE EFFECT WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO FUTURE CHANGES TO THIS AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES AFTER THE EFFECTIVE DATE OF SUCH CHANGES.