LAST UPDATED: June 24, 2014
This Agreement is between you ("you") and Imagenomic, LLC ("Imagenomic," "we," "us") concerning your access to and use of the online sites currently located at http://www.imagenomic.com and http://www.noiseware.com/mobile (collectively, with all sub-domains, affiliated domains, any successor site(s) and all Services (as defined below), collectively, the "Sites"). Your use of the Sites is governed by this Agreement regardless of how you access the Sites, including through the Internet, through Wireless Access Protocol (commonly referred to as "WAP"), through a mobile network or otherwise.
1. Acceptance of Terms. The Sites are made available by Imagenomic subject to this Agreement. We reserve the right to update or make changes to this Agreement from time to time, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this Agreement on the Sites. You can determine when this Agreement was last revised by referring to the " LAST UPDATED " legend at the top of this Agreement. Your access to or use of the Sites following changes to this Agreement will constitute your acceptance of those changes. Any changes to this Agreement shall not apply to any dispute between you and Imagenomic arising prior to the date on which Imagenomic posted the revised version of this Agreement incorporating such changes or otherwise notified you of such changes. When using any Services (as defined below), you agree that you are subject to any additional terms and conditions posted by us that are applicable to such Services (including, without limitation, any applicable Imagenomic EULA (as defined below)), which are hereby incorporated by reference into this Agreement.
BY ACCESSING OR USING THE SITES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify, suspend or discontinue the Sites (including, without limitation, your access to the Sites and your user account and passkey), with or without notice; charge fees in connection with the use of the Sites; modify or waive any fees charged in connection with the Sites; or offer opportunities to some or all users of the Sites. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Sites (including, without limitation, your access to the Sites and your user account and passkey), in whole or in part, or of any Service, content, feature or product offered through the Sites.
2. Jurisdictional Issues. The Sites are controlled and operated by Imagenomic from the United States, and is not intended to subject Imagenomic to the laws or jurisdiction of any state, country or territory other than that of the United States. Imagenomic neither represents nor warrants that the Sites or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Sites, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. We may limit the Sites's availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time. Not all products or services described on the Sites are available in all states or territories.
4. Description of the Services. We provide users of the Sites with access to certain content and services related to Imagenomic and its products, which may include, without limitation: (a) downloadable software products, software product webpages and related information; (b) services such as information on events and initiatives at Imagenomic; (c) content such as photographs, graphics, images, videos, sounds, text, data and other similar content; (d) support services; and (e) e-commerce functionality (such software products, information, content and services, collectively, the "Services"). In the event that you enter into a separate EULA with Imagenomic to license and/or otherwise use one of Imagenomic's software products or services (an "Imagenomic EULA"), your licenses, usage rights and other rights, responsibilities and obligations with respect to such Imagenomic software products or services will be governed by both (i) the terms and conditions set forth in such Imagenomic EULA, and (ii) the terms and conditions of the body of this Agreement; provided, that in the event of a conflict between such terms and conditions with respect to any subject matter, the conflicting provisions of such Imagenomic EULA shall take precedence over the conflicting provisions in the body of this Agreement with respect to such subject matter.
5. Quality of the Services. The quality (e.g., the resolution) of streaming content, as well as the download speed of downloadable content, may be affected by a variety of factors such as your location, the content being streamed or downloaded and the speed of your Internet connection. Imagenomic makes no representation or warranty regarding access to content available through the Services, including the quality of streaming content and the download speed of downloadable content.
6. Rules of Conduct. You must comply with all applicable laws, rules and regulations while accessing or using the Sites. In addition, we expect users of the Sites to respect the rights and dignity of others. Your use of the Sites is conditioned upon your compliance with the rules set forth in this section. You must not:
Interfere with or disrupt the operation of the Sites or the servers or networks used to make the Sites available (including by taking any action that imposes an unreasonable or disproportionately large load upon the Sites or upon such servers or networks) or violate any requirements, procedures, policies or regulations of such servers or networks.
Restrict or inhibit any other person from using the Sites (including by hacking or defacing the Sites).
Use the Sites to advertise or offer to sell or buy any goods or services.
License, sublicense, transfer, assign, reproduce, duplicate, copy, sell, resell, distribute, or exploit for any commercial purposes the Sites or any access to or use of the Sites.
Modify, adapt, make derivate works of, translate, reverse engineer, decompile or disassemble the Sites.
Remove any copyright, trademark or other proprietary rights notice from the Sites or any materials available through the Sites.
Frame or mirror any part of the Sites without Imagenomic's express prior written consent.
Systematically download or store content from the Sites.
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or in any way gather content of the Sites or reproduce or circumvent the navigational structure or presentation of the Sites without Imagenomic's express prior written consent. Notwithstanding the foregoing, Imagenomic grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Imagenomic reserves the right to revoke these exceptions either generally or in specific cases.
Post, transmit, or otherwise make available, through or in connection with the Sites, (a) anything that could be (i) threatening, harassing, discriminatory, degrading, hateful or intimidating; (ii) defamatory, fraudulent or otherwise tortious; (iii) obscene, indecent, pornographic or otherwise objectionable; or (iv) related to alcohol, wagering, gambling, tobacco products, ammunition or firearms; (b) anything that could give rise to criminal or civil liability (including any material protected by copyright, trademark, trade secret, right of publicity, or any other proprietary right for which you do not have the express prior consent of the owner of such right or in violation of any contractual, fiduciary or other legal obligation), or that encourages conduct that would constitute a criminal offense; (c) any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is potentially harmful or invasive, or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment; (d) any unsolicited or unauthorized advertising, promotional material, "junk mail," "spam," "chain letter," "pyramid scheme," investment opportunity or other form of solicitation; or (e) any material, non-public information about a company or any securities or other financial instrument, without the proper authorization to do so.
Use the Sites (a) to defame, abuse, harass, stalk, threaten, harvest or collect personally identifiable information, or otherwise violate the legal rights of others, including rights of privacy or publicity; (b) to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity, or state or imply that we endorse any of your statements or Submissions (as defined below); or (c) for any other fraudulent or unlawful purpose.
Additionally, you acknowledge and agree that you (and not Imagenomic) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment and services needed to access and use the Sites, and paying all charges related thereto.
We may terminate your use of the Sites for any conduct that we consider to be inappropriate, or for your breach of this Agreement, including the Rules of Conduct set forth above (including, without limitation, if you repeatedly engage in copyright infringement via or in connection with the Sites).
7. Registration; User Names, Passwords and Passkeys. You may need to register to use all or part of the Sites. You represent and warrant that all information submitted to Imagenomic in connection with such registration is complete and accurate. We may reject, or require that you change, for any reason, any user name, password or other information that you provide to us in registering. Your user name and password (if any) and the user passkey issued to you by Imagenomic are for your personal use only and should be kept confidential; you (and not Imagenomic) are responsible for any use or misuse of your user name, password (if any) or passkey, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name, password (if any) or passkey, or your Sites account. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
8. Forums. We and our service providers may make available through the Sites certain services (for example, message boards, forums, blogs, chat functionality, messaging functionality and comment functionality, among other services) to which you are able to post information and materials (each, a "Forum"). Information contained in Forums may be provided by employees of Imagenomic as well as by third-party visitors to the Sites. Please note that visitors to the Sites may post messages or make statements in the Forums that are inaccurate, misleading or deceptive. Imagenomic and its directors, officers, employees, representatives, affiliates, licensors and service providers (collectively, with Imagenomic, the "Imagenomic Entities") neither endorse nor are responsible for any opinion, advice, information or statements made in the Forums by third parties. Without limitation, the Imagenomic Entities are not responsible for any information or materials made available through the Forums (including errors or omissions in Forum postings or links or images embedded in Forum postings) or results obtained by using any such information or materials. Under no circumstances will the Imagenomic Entities be liable for any loss or damage caused by your reliance on such information or materials. The opinions expressed in the Forums reflect solely the opinions of the individuals who submitted such opinions, and may not reflect the opinions of Imagenomic. In addition, the Imagenomic Entities have no control over, and shall have no liability for, any damages resulting from the use (including republication) or misuse by any third party information voluntarily made public through a Forum or any other part of the Sites. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE IN A FORUM OR OTHERWISE ON THE SITES, YOU DO SO AT YOUR OWN RISK.
9. Submissions. The Sites may make available certain functionality (including Forums, photograph galleries and e-mail addresses) through which you are able to post, send or make available information, photographs, content and materials (each, a "Submission"). For purposes of clarity, you retain any ownership rights that you may have in any of the Submissions that you post, subject to the terms and conditions of this Agreement. For each Submission that you make available through or in connection with the Sites, you hereby grant to us a world-wide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), adapt, modify and otherwise use and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as displaying a user photograph or comment on the front page of the Sites as a testimonial), and you hereby represent and warrant that you have all necessary rights to grant the foregoing license. We may use Submissions for any purpose whatsoever without compensation to you or any other person. You are and remain responsible and liable for the content of any Submission. You also confirm that, to the extent your Submissions include any third party material, you have obtained permission for the use of such third party material consistent with the scope of this license. Upon Imagenomic's request, you agree to provide Imagenomic with satisfactory evidence of your permission to use all third-party material.
10. Monitoring. We may (but have no obligation to) monitor, evaluate or alter Submissions before or after they appear on the Sites. We may disclose any Submissions and the circumstances surrounding their transmission to anyone for any reason or purpose.
11. Feedback. Unless we expressly agree otherwise in writing, if you provide us with any ideas, proposals, suggestions or materials ("Input"), whether related to the Sites, the Services or otherwise, you hereby acknowledge and agree that (a) your provision of any Input is gratuitous, unsolicited and without restriction and does not place Imagenomic under any fiduciary or other obligation; (b) any Input is not confidential and Imagenomic has no confidentiality obligations with respect to such Input; and (c) to the extent permitted under applicable law, any Input will become our sole property. Without limiting the foregoing, to the extent that any Input is not assignable or you retain any right, title or interest in and to any Input or any proprietary rights therein, you hereby grant to us a world-wide, royalty-free, fully paid-up, exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), adapt, modify and otherwise use and exploit such Input, in any format or media now known or hereafter developed, and you hereby represent and warrant that you have all necessary rights to grant the foregoing license. We may use Input for any purpose whatsoever without compensation to you or any other person. You are and remain responsible and liable for the content of any Input.
12. Imagenomic's Proprietary Rights. We and/or our licensors and suppliers own the information and materials made available through the Sites. Such information and materials are protected by copyright, trademark, patent and/or other proprietary rights and laws. Except as expressly authorized in advance by us, you agree not to reproduce, modify, rent, lease, loan, sell, distribute or create derivative works based on, all or any part of the Sites or any information or materials made available through the Sites.
Trade names, trademarks and service marks on the Sites, including without limitation NoiseWare, Potraiture, RealGrain and Imagenomic and Imagenomic's logo, are owned by Imagenomic, Imagenomic's licensors or other respective owners. Such trade names, trademarks and service marks, whether registered or unregistered, may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Sites should be construed as granting, by implication, estoppel or otherwise, any license or right to use any such trade names, trademarks or service marks without the express prior written consent of the owner.
13. Purchases. We may make available products and services for purchase through the Sites, and we may use third-party suppliers and service providers to enable e-commerce functionality on our Sites. If you wish to purchase any product or service made available by us through the Sites or through our customer service representatives, account representatives or other sales channels (each such purchase, a "Transaction"), you may be asked to supply certain information relevant to your Transaction, including without limitation your credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant to Imagenomic the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
Imagenomic reserves the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to not honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all Transaction(s); and/or to refuse to provide any user with any product or service. Refunds and exchanges for any products or services will be subject to Imagenomic's refund and exchange policies then in effect or, to the extent applicable, as otherwise set forth in an Imagenomic EULA applicable to such products or services. You agree to pay all charges that may be incurred by you or on your behalf through the Sites, at the price(s) in effect when such charges are incurred, including without limitation all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions. You agree that if you purchase any products or services from us in a Transaction, you will not resell such products or services unless we have provided our express prior written consent to do so.
14. Accuracy of Information; Products, Content and Specifications. We attempt to ensure that information provided on or in connection with the Sites is complete, accurate and current. Despite our efforts, such information may occasionally be inaccurate, incomplete or out of date. Accordingly, we make no representation as to the completeness, accuracy or currentness of such information, including all descriptions, images, references, features, content, specifications, products and prices of products and services described or depicted on the Sites. Such information is also subject to change at any time without notice. Descriptions and images of, and references to, third-party products or services available in connection with the Sites do not imply Imagenomic's endorsement of such third-party products or services. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on this Sites at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Sites. By placing an order, you represent that the products ordered will be used only in a lawful manner.
Imagenomic shall have the right, at any time, to block links to the Sites through technological or other means without prior notice.
16. DISCLAIMER OF WARRANTIES. THE SITES AND ANY GOODS OR SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SITES ARE PROVIDED TO YOU "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SITES, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE SITES. THE IMAGENOMIC ENTITIES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITES AND ANY PRODUCT OR SERVICE (INCLUDING WITHOUT LIMITATION, THIRD PARTY PRODUCTS AND SERVICES) OBTAINED THROUGH THE SITES, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE.
17. LIMITATION OF LIABILITY. THE IMAGENOMIC ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITES, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, THE IMAGENOMIC ENTITIES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITES OR FROM ANY CONTENT POSTED ON THE SITES BY IMAGENOMIC OR ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITES IS TO STOP USING THE SITES. THE MAXIMUM LIABILITY OF IMAGENOMIC FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO IMAGENOMIC TO ACCESS AND USE THE SITES.
While we try to maintain the integrity and security of the Sites and the servers from which the Sites are operated, we do not guarantee that the Sites will be or remain secure, complete or correct, or that access to the Sites will be uninterrupted. The Sites may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Sites. If you become aware of any unauthorized third party alteration to the Sites, contact us at email@example.com with a description of the material(s) at issue and the URL or location on the Sites where such material(s) appear.
18. Indemnity. Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless each of the Imagenomic Entities from and against all claims, losses, costs and expenses (including attorneys' fees) arising out of (a) your use of, or activities in connection with, the Sites; (b) any violation or alleged violation of this Agreement by you; or (c) any claim that any of your Submissions, Input or any use or exploitation thereof caused damage to or infringed upon or violated the rights of a third party, including past, present or future infringement, misappropriation, libel, defamation, invasion of privacy or right of publicity, or violation of any right related to the foregoing.
19. Termination. This Agreement is effective until terminated. Imagenomic may terminate your access to or use of the Sites, at any time and for any reason, including if Imagenomic believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to access or use the Sites will immediately cease. You agree that any termination of your access to or use of the Sites may be effected without prior notice, and that Imagenomic may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that Imagenomic shall not be liable to you or any third party for any termination of your access to the Sites or to any such information or files, and shall not be required to make such information or files available to you after any such termination. Sections 2, 3, 4 (but only with respect to the second sentence thereof), 5, 6, 8, 9 through 21 and 24 shall survive any expiration or termination of this Agreement.
20. Governing Law; Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of the Commonwealth of Virginia (but expressly excluding the Uniform Computer Information Transactions Act (UCITA) as enacted in Virginia) without giving effect to any choice of law rule. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement, such controversy, claim or dispute may be tried solely in a state or federal court for Loudoun County, Virginia, and you hereby irrevocably consent to the jurisdiction and venue of such courts.
21. Contact Us. If you have any questions regarding the meaning or application of this Agreement, please direct such questions to firstname.lastname@example.org. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.
22. Filtering. Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the two web sites GetNetWise ( http://kids.getnetwise.org/ ) and OnGuard Online (http://onguardonline.gov/ ). Please note that Imagenomic does not endorse any of the products or services listed at such sites.
23. Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Sites, please contact us by writing to Artavazd Ghazaryan at Imagenomic, LLC, 8000 Towers Crescent Drive, Suite 1346, Vienna, VA 22182 or by calling us at (202) 550-7981. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Sites © 2004-2016 Imagenomic, LLC, unless otherwise noted. All rights reserved.