RAUXA TERMS & CONDITIONS
TERMS OF SERVICE AGREEMENT
Last updated: February 22, 2011
IMPORTANT NOTICE TO USER: PLEASE READ THIS DOCUMENT CAREFULLY. This Terms of Service (“Agreement”) is a legal agreement between you (referred to herein as “you” or “your”) and Rauxa Direct, LLC (“Rauxa”, “we”, “our”, or “us”) for access to and use of our websites located at HYPERLINK "http://www.rauxa.com" www.rauxa.com and HYPERLINK "http://www.rauxablog.com" www.rauxablog.com and subdomains thereof (“Websites”).
BY ACCESSING OR USING OUR WEBSITE(S), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF ANY OF THESE TERMS ARE UNACCEPTABLE TO YOU OR IN THE EVENT THAT ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE THE WEBSITES. YOUR CONTINUED USE OF THE WEBSITE(S) NOW, OR FOLLOWING THE POSTING OF ANY CHANGES IN THIS AGREEMENT, WILL INDICATE ACCEPTANCE AND AGREEMENT BY YOU OF SUCH RULES, CHANGES, OR MODIFICATIONS.
YOU REPRESENT THAT YOU ARE A UNITED STATES RESIDENT, YOU ARE NOT A MINOR IN YOUR STATE OF RESIDENCE AND THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS.
1. The Websites. The Websites enable you to learn about us, to submit your comments on our postings, and to sign-up to receive additional information about us and our services. To use certain features and functionalities of the Websites, you must create an account with us, and provide certain personal information about yourself to us.
2. Use of the Websites by You.
A. You agree that (i) you will use the Websites solely for your own, non-commercial, personal use in accordance with this Agreement, (ii) all information supplied by you to Rauxa will be true, accurate, current and complete, and (iii) you will review the latest version of this Agreement posted on the Websites from time to time to check for amendments that may apply to you (as more fully described in Section 12 below). We retain the right at our sole discretion to deny or suspend access to the Websites to anyone, at any time and for any reason, without liability.
B. You acknowledge and agree that your use of the Websites, including, without limitation, the storage of any data, files, information and/or other materials on a server owned or under the control of Rauxa or in anyway connected to the Websites, shall be at your sole risk and responsibility and Rauxa shall have no obligation to back-up such data, files, information and/or other materials. Rauxa expressly reserves the right to limit storage capacity and to remove and/or delete any data, files, and/or other information stored or used in connection with the Websites that Rauxa deems, in its sole discretion, to be in violation of this Agreement and/or any local, state, or federal law or regulation.
C. You are solely responsible for any breach of your obligations under this Agreement and for the consequences (including any loss or damage which Rauxa may suffer) of any such breach.
3. Restrictions on Use of the Websites. You agree that you will not:
(i) use the Websites in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement and/or any and all applicable local, state and federal laws and regulations and international treaties;
(ii) use the Websites for the distribution, housing, processing, propagation, storage, or otherwise handling in any way abusive, defamatory, harassing, libelous, lewd, libelous, obscene, pornographic, threatening, or tortuous material, or any false or misleading material, or any other material (including links to such material) that Rauxa deems, in its sole discretion, to be objectionable whether or not such material is unlawful;
(iii) permit or otherwise enable unauthorized users to access and/or use the Websites;
(iv) use the Websites to export software or data in violation of applicable U.S. laws or regulations;
(v) sell, copy, duplicate, rent, lease, loan, distribute, transfer, or sublicense the Websites, or otherwise permit any third party to use or have access to the Websites for any purpose (except as expressly permitted by Rauxa in writing) or decompile, reverse engineer, disassemble, modify, create a derivative work of, display in human readable form, attempt to discover any source code, or otherwise use any software that enables or comprises any part of the Websites;
(vi) remove any copyright, trademark, patent or other proprietary notices from the Websites;
(vii) distribute, publish, exhibit, or otherwise use the Websites, in any manner and for any purpose not expressly permitted under this Agreement;
(viii) frame or utilize framing techniques to enclose the Websites, or any portion thereof;
(ix) exploit the Websites or collect any data incorporated in the Websites in any automated manner through the use of bots, metaspiders, crawlers or any other automated means;
(x) register as a user of the Websites by providing false, inaccurate, or misleading information;
(xi) post hyperlinks to commercial services or websites;
(xii) impersonate any person or entity, including, but not limited to, an Rauxa employee, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(xiii) collect personal data about other users of the Websites for commercial or any other purposes;
(xiv) post irrelevant Content (as defined in Section 7 below), repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
(xv) attempt to gain unauthorized access to our computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Websites (or the servers and networks which are connected to the Websites);
(xvi) make available Content (as defined in Section 7 below) that constitutes or contains "affiliate marketing," "link referral code," "junk mail," "spam," "chain letters," "pyramid schemes," or unsolicited commercial advertisement, except to the extent such Content is provided to you by Rauxa or one of its affiliates for a purpose specifically authorized by Rauxa in writing; and
(xvii) create or attempt to create multiple user accounts.
4. Provision of the Websites by Rauxa. Rauxa is constantly improving the Websites in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Websites which Rauxa provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that Rauxa may decline to provide you access to the Websites or stop (permanently or temporarily) providing the Websites (or any features or programs within the Websites) to you or to users generally at Rauxa’s sole discretion, without liability or prior notice to you. You may stop using the Websites at any time. You do not need to specifically inform Rauxa when you stop using the Websites. You acknowledge and agree that if Rauxa disables access to your account, you may be prevented from accessing the Websites, your account details, or any files or other content which is contained in your account. Any new features that augment or enhance the current Websites shall be subject to this Agreement.
5. Access to the Websites; Reservation of Rights.
A. Rauxa hereby gives you a personal, worldwide, non-assignable and non-exclusive right to access and use the Websites in the manner and for the purposes expressly permitted by the Agreement. You may not assign (or grant a sub-license of) your rights to use the Websites, grant a security interest in or over your rights to use the Websites, or otherwise transfer any part of your rights to use the Websites and any such attempt shall be null and void at the time of such attempt.
B. Rauxa reserves all right, title and interest in and to the Websites not expressly granted to you under this Agreement. There are no implied licenses under this Agreement.
6. Your Password and Account Security. You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Websites. Accordingly, you agree that you will be solely responsible to Rauxa for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Rauxa immediately at email@example.com.
7. Content in the Websites.
A. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Websites are the sole responsibility of the person from which such content originated. All such information is referred to as “Content”.
B. You acknowledge that Content presented to you as part of the Websites may be protected by intellectual property rights which are owned by third parties who provide that Content to Rauxa (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by Rauxa or by the owners of that Content, in writing.
C. Rauxa reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content.
D. You understand that by using the Websites you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Websites at your own risk.
E. You agree that you are solely responsible for (and that Rauxa has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Websites and for the consequences of your actions (including any loss or damage which Rauxa may suffer) by doing so.
8. Intellectual Property.
A. You acknowledge and agree that Rauxa (or Rauxa’s licensors) own all legal right, title and interest in and to the Websites, including any intellectual property rights which subsist in the Websites (whether those rights happen to be registered or not, and wherever in the world those rights may exist) including, without limitation, all rights with respect to copyrights, patents, trademarks, Websites marks, moral rights, trade names, domain names, technology, mask works, know-how, design rights, trade dress, trade secrets, inventions, ideas, processes, formulas, source code and object code, data, and similar rights including the information in any application, registration, or renewal thereof that may be protected under the intellectual property laws, regulations, or rules of any country. Without limiting the foregoing, all data, graphics, icons, images, logos, text, and the compilation of all content therein, and all service marks, trademarks, trade names, and trade dress depicted on the Websites are owned by Rauxa (or Rauxa’s licensors).
B. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Websites.
C. You agree that in using the Websites, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
9. Content License from you.
A. You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Websites. By submitting, posting or displaying the Content you give Rauxa a worldwide, perpetual, irrevocable, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute and otherwise exploit any Content which you submit or post on or through the Websites in any manner or media whatsoever, now known or hereafter developed. Other than the limited license set forth in this Section, Rauxa acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any Content that you submit, post, transmit or display on, or through, the Websites, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Rauxa, you agree that you are responsible for protecting and enforcing those rights and that Rauxa has no obligation to do so on your behalf.
B. In connection with Content you submit to Rauxa Website(s), you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize Rauxa to use such Content in the manner contemplated by the Websites and these Terms of Service. You further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to post the material and to grant Rauxa all of the license rights granted herein.
C. Rauxa does not accept unsolicited submissions of ideas or materials in connection with potential advertising campaigns, original films, programming or other products or services. It is the intent of this policy to avoid the possibility of future misunderstandings. Therefore, please do not make any such unsolicited submissions to us through any of the Websites or otherwise.
D. You understand that Rauxa, in performing the required technical steps to provide the Websites to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Rauxa to take these actions.
E. You confirm and warrant to Rauxa that you have all the rights, power and authority necessary to grant the above license.
10. Copyright Agent. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied and posted on the Websites in a way that constitutes copyright infringement, please provide our copyright agent with the following information: an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Websites; your address, telephone number, and e-mail address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf. Any notification by a copyright owner or a person authorized to act on such copyright owner’s behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon Rauxa actual knowledge of facts or circumstances from which infringing material or acts are evident. Rauxa’s copyright agent for notice of claims of copyright infringement can be reached as follows:
Name: Lan Nguyen
Address: 275A McCormick Ave, Costa Mesa, CA 92626
Telephone: (415) 541-9489
We suggest that you consult your legal advisor before filing a notice with Rauxa’s copyright agent. You should note that there can be penalties for false claims under the DMCA.
12. Changes to Agreement. Rauxa reserves the right to change, amend and/or modify this Agreement, in whole or in part, at any time with or without notice. You hereby acknowledge and agree that such changes, amendments and/or modifications will become effective when posted on the Websites or as otherwise provided by Rauxa. From time to time, Rauxa may post on the Websites or otherwise notify you of additional or different rules and policies relating to the Websites. These rules and policies shall thereafter be part of this Agreement. If you use a Website after the posting or other notice of changes in this Agreement or changed rules or policies, you are agreeing to follow and be bound by them for such use.
13. NO WARRANTIES. EACH OF THE WEBSITES IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. WE MAKE NO REPRESENTATIONS REGARDING ANY PRODUCT OR SERVICE ADVERTISED IN CONTENT OR THE TRUTH OR ACCURACY OF CONTENT. TO THE FULLEST EXTENT PERMITTED BY LAW, RAUXA EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, RAUXA DOES NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION ON THE WEBSITES, OR THAT THE WEBSITES, INCLUDING, WITHOUT LIMITATION, ANY DATA, FILES, AND/OR OTHER INFORMATION STORED ON A SERVER OWNED OR UNDER THE CONTROL OF RAUXA OR IN ANY WAY CONNECTED WITH THE WEBSITES, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DISCLAIMERS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR REPUBLICATION OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM RAUXA OR THROUGH OR FROM THE WEBSITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
14. DISCLAIMER OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL RAUXA, ITS AFFILIATES, DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE WEBSITES PROVIDED HEREUNDER, EVEN IF RAUXA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, PROFESSIONAL NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS OR LEGAL THEORY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER OR NOT THE DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM: (i) THE USE OR MISUSE OF, OR RELIANCE UPON, THE WEBSITES PROVIDED HEREUNDER; (ii) THE INABILITY TO USE THE WEBSITES FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, OR DESTRUCTION; (iii) THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE WEBSITES; OR (iv) THE DELETION AND/OR CORRUPTION OF ANY DATA, INFORMATION, DOCUMENTS, FILES AND/OR ANY OTHER MATERIALS STORED ON A SERVER OWNED OR UNDER THE CONTROL OF RAUXA OR IN ANY WAY CONNECTED TO THE RAUXA WEBSITES. SUCH LIMITATION ON LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
15. Indemnification. You agree to release, indemnify and hold harmless Rauxa, its affiliates, directors, members, officers, employees, agents and third party licensors, from and against any and all liabilities, losses, damages, claims and expenses, including attorneys’ fees, with respect to your use or misuse of, or reliance upon, any of the Websites or your violation of this Agreement or rights of another or any Content you make available through any of the Websites. This section shall survive the termination of this Agreement.
16. Release. You hereby release Rauxa (and our officers, directors, members, managers, employees, agents and affiliates) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute with one or more users of the Websites or any third party whose Content is featured on the Websites.
If you are a California resident, you waive California Civil Code 1542, which says:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
17. Term and Termination. This Agreement is effective until terminated by Rauxa or you. Rauxa shall have the right to terminate this Agreement including, without limitation, your right to access and use the Websites, at any time in Rauxa’s sole discretion and without advance notice to you. The licenses granted herein shall automatically terminate without advance notice if you fail to comply with any material provision of this Agreement. Upon termination of this Agreement for any reason, you shall immediately cease using the Websites. When this Agreement comes to an end, all of the legal rights, obligations and liabilities that you and Rauxa have benefited from, been subject to (or which have accrued over time whilst the Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Section 18 shall continue to apply to such rights, obligations and liabilities indefinitely
18. Governing Law and Venue. This Agreement shall be governed by the laws of the State of California without giving effect to conflict or choice of law principles, and any litigation between the parties arising under this Agreement shall be conducted exclusively in state or federal courts located in the State of California and you waive any jurisdictional, venue, or inconvenient forum objections to such courts. The parties hereby waive any right to jury trial with respect to any action brought in connection with your use of the Websites or this Agreement.
19. Severability. If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
20. No Assignment, Sublicense or Transfer. You may not assign, sublicense, or transfer this Agreement or any rights or obligations hereunder without prior written consent of Rauxa. Any such attempted assignment, sublicense, or transfer will be null and void and Rauxa, in its sole discretion, shall have the right to immediately terminate this Agreement.
21. Communications by Rauxa. You agree that Rauxa may communicate with you electronically. Such electronic communications may consist of e-mail, notices posted on the Websites, and other communications. You agree that all agreements, notices, disclosures, and other communications Rauxa sends to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to this Agreement.
22. Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties relating to its subject matter and may be amended only in a writing signed by both parties. Any waiver of or promise not to enforce any right under this Agreement shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise.