Acculynx.Com Web Site Terms and Conditions Of Use

 

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE. This Web site is a service made available by EXACTLOGIX, INC., an Illinois corporation doing business as Acculynx.com (referred to as "Acculynx"). Your use of this site is expressly conditioned on your acceptance of the following Terms and Conditions and the ACCULYNX.COM PRIVACY POLICY. By accessing or using this Web site, any of Acculynx's products, software, services, or Web sites, or downloading or viewing any materials (referred to collectively as the "Services"), you are signifying that you have read and agreed to all applicable guidelines, policies, regulations and rules set forth herein or otherwise provided by Acculynx and you signify your assent to these Terms and Conditions. If you do not agree with any part of the following Terms and Conditions, you must not access the Services or any materials or otherwise use this site.

 

1.   License and Restrictions.

 

  1.1   Grant of License. By offering this Web site for use, Acculynx provides you with a worldwide, nonexclusive, nontransferable, revocable, limited license to access and make personal use of the Services (expressly excluding any services or software offered on the Web site for which a subscription is required and for which you currently do not subscribe), strictly subject to and in accordance with these Terms and Conditions. Except for the limited license set forth in these Terms and Conditions, Acculynx does not grant you any express or implied rights or licenses under any patents, trademarks, copyrights, trade secrets, or other proprietary or intellectual property rights.

 

  1.2   Usage Restrictions. By using the Services, you agree that:

 

    1.2.1  You shall not use, intentionally or unintentionally, any of the Services in a manner contrary to or in violation of any applicable international, federal, state, or local law, rule or regulation having the force of law, including, but not limited to, the CAN SPAM Act, HIPAA, and any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ;

 

    1.2.2  You shall not use the Services in any manner that could harm, infect, take over, disable, overburden, or otherwise impair any of our computer systems, including, but not limited to, the servers, networks, and other components connected to or used for the Services;

 

    1.2.3  You shall not interfere with any other party's use and enjoyment of the Services;

 

    1.2.4  You shall not forge headers or otherwise manipulate identifiers in order to disguise or alter the origin of any content transmitted through the Services or develop restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page);

 

    1.2.5  You shall not upload, post, or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

 

    1.2.6  You shall not upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

 

    1.2.7  You shall not attempt to gain unauthorized access to any Services, other software, accounts, computer systems, or networks connected to any server used for the Services, through password mining, hacking, or any other means;

 

    1.2.8  You shall not seek to gain access to any Services, materials, or other information through any means not intentionally made available by Acculynx;

 

    1.2.9vYou shall not reproduce, duplicate, copy, download, sell, resell, or otherwise exploit the Services, or any portion thereof, for commercial purposes without Acculynx's prior written consent;

 

    1.2.10  You shall not use any framing techniques to enclose any portion of the Services (including, but not limited to, images, text, page layout, and form) without Acculynx's prior written consent, other than framing on your own intranets or otherwise for your own internal business purposes;

 

    1.2.11  You shall not make any use of the trademarks, service marks, trade names, logos, and graphics used in connection with the Services without Acculynx's prior written consent;

 

    1.2.12  You shall not use any network monitoring or discovery software to determine the site architecture, or extract information about usage, individual identities, or users of the Services;

 

    1.2.13  You shall not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Services or any content or information offered in connection with the Services without Acculynx's prior written consent;

 

    1.2.14  You shall not collect any email addresses made available on this site for purposes of promotions or marketing campaigns of any kind;

 

    1.2.15  You shall not distribute, on or through the Services, any advertising; promotion; solicitation for goods, services, or funds; or solicitation for others to become members of any enterprise or organization without Acculynx's prior written permission;

 

    1.2.16  You shall not remove, decompile, disassemble, reverse engineer, or create compilations or derivative works of the Services or any portion thereof; and

 

    1.2.17  You shall not use or otherwise export or re-export the Services, or any portion thereof, in violation of the export control laws and regulations of the United States.

 

  1.3   Right to Modify or Discontinue Services. Acculynx reserves the right at any time and from time to time to modify or discontinue the availability of, temporarily or permanently, the Services (or any part thereof) with or without notice. Acculynx's rights under this Section 1.3 include, but are not limited to, the right to temporarily discontinue the availability of the Software on any day between the hours of midnight and 6:00 a.m. Central Time in order to implement maintenance and upgrades to the Services. You agree that Acculynx shall not be liable to You or to any third party for any modification, suspension or discontinuance of the availability of the Services.

 

2.   Ownership of Patents, Copyrights and Trademarks. The technology and Services provided by Acculynx are the property of Acculynx and/or its various third-party providers and distributors and are protected by United States and international patent, copyright, trademark, trade secret and other intellectual property laws. Acculynx and its licensors retain all proprietary rights to the technology and the Services. Unauthorized use of the technology or the Services may violate applicable patent, copyright, trademark, trade secret, or other intellectual property laws or other laws. Any content cached or otherwise retained by you must include all patent, copyright, and trademark notices and other proprietary notices contained in such content or in connection with the Services.

 

3.   Authorized User, Age, and Responsibility. You represent that you are an authorized user of the Services, have rights to access the Services, are of sufficient legal age to use the Services and to create binding legal obligations for any liability you may incur as a result of the use of the Services. You understand that you are financially responsible for all uses of the Services by you and, where applicable, those using your login information and password.

 

4.   Privacy. You have read the Acculynx Privacy Policy, the terms of which are incorporated herein, and agree that the terms of such policy are reasonable. You consent to the use of any information submitted to Acculynx by Acculynx and/or its third-party providers, vendors, and distributors in accordance with the terms of and for the purposes set forth in the Acculynx Privacy Policy.

 

5.   Termination. The license granted pursuant to these Terms and Conditions may be terminated by you at any time by discontinuing use of the Services and by destroying all copies of downloaded or cached materials in your possession or control. Acculynx reserves the right to terminate this license at any time and for any reason. Your failure to comply with these Terms and Conditions will result in automatic termination of this license, without prior notice, and you must immediately destroy all copies of downloaded or cached materials in your possession or control.

 

6.   EXCLUSION OF WARRANTY. ACCULYNX AND ANY THIRD-PARTY PROVIDERS, VENDORS, AND DISTRIBUTORS MAKE NO WARRANTY OF ANY KIND REGARDING THE SERVICES AND/OR ANY CONTENT PROVIDED TO YOU, ALL OF WHICH ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ACCULYNX AND ANY THIRD-PARTY PROVIDERS, VENDORS, AND DISTRIBUTORS DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF ANY OF THE SERVICES OR ANY OTHER CONTENT OR DATA FOUND ON THIS SITE AND SUCH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

 

7.   LIMITATION OF LIABILITY. ACCULYNX ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF THE SERVICES, BROWSING IN THIS SITE OR YOUR DOWNLOADING OF ANY CONTENT, DATA, TEXT, IMAGES, VIDEO, AUDIO OR OTHER MATERIAL FROM THE SITE OR THROUGH THE SERVICES. IN NO EVENT SHALL ACCULYNX OR ANY THIRD-PARTY PROVIDERS, VENDORS, OR DISTRIBUTORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (I) ANY USE OF THE SERVICES OR OTHER CONTENT FOUND ON THIS SITE, (II) ANY FAILURE OR DELAY, OR (III) THE PERFORMANCE OR NON-PERFORMANCE BY ACCULYNX OR ANY THIRD-PARTY PROVIDERS, VENDORS, OR DISTRIBUTORS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY.

 

8.   Indemnification. You shall defend and indemnify Acculynx, its affiliates, and any of its third-party providers, vendors, and distributors, and the officers, directors, employees and agents of any of the foregoing, from and against any claim, cause of action, or demand, including without limitation reasonable legal and accounting fees, brought by third-parties as a result of your use of this Web site, the Services, or your breach of these Terms and Conditions.

 

9.   Links. The Services may contain links to other Web sites that are provided solely as a convenience to you and are not necessarily an endorsement by Acculynx or its third-party providers, vendors, or distributors of the contents of such other Web sites. Neither Acculynx nor any third-party provider, vendor, or distributor shall be responsible for the content of any other Web sites and they make no representation or warranty regarding any other Web sites or the contents or materials on such Web sites. If you decide to access other Web sites or participate in any offers or programs via such Web sites, you do so at your own risk.

 

10.   Submissions. "Submissions" means all comments, feedback, suggestions, photos, surveys, reports, e-mail, and other information or materials that you submit to Acculynx. Submissions will not be confidential and will become the property of Acculynx upon submission to Acculynx. By providing any such Submissions, you thereby assign to Acculynx, at no charge, all worldwide rights, title, and interest in copyrights and other intellectual property rights to the Submissions. You represent and warrant that any Submission you provide to Acculynx will be complete and accurate. You acknowledge that you are responsible for the Submissions that you provide, and that you, not Acculynx, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality, and copyright. Acculynx does not prescreen or monitor any Submissions as a matter of policy.

 

11.   Notices. All required notices shall be in writing and shall be delivered to the address notified by the parties to each other by a means evidenced by a delivery receipt, by facsimile, or by e-mail. Notice shall be deemed to have been given upon (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by e-mail. Notices to Acculynx shall be addressed to the attention of its President.

 

12.   Relationship. Your use of the Services is independent of Acculynx and not as an employee, agent, partner, or joint venturer with Acculynx for any purpose.

 

13.   Injunctive Relief. Each party acknowledges that any violation by that party of its covenants in these Terms and Conditions (if any) relating to intellectual property rights, confidential or proprietary information, or trade secrets would result in damage to the other party that is largely intangible but nonetheless real, and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give the other party the right to a court-ordered injunction or other appropriate order to specifically enforce those covenants. The party against whom any such injunction is entered agrees to pay to the other party any reasonable expenses, including but not limited to attorney's fees, incurred in obtaining such specific enforcement (in addition to any other relief to which the other party may be entitled).

 

14.   Attorney's Fees. In the event any action is brought to enforce any provision of these Terms and Conditions or to declare a breach of these Terms and Conditions, Acculynx shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney's fees, incurred thereby.

 

15.   Assignment; Binding Agreement. You may not assign, subcontract, or delegate your rights, duties, or obligations under these Terms and Conditions or any license granted or created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Acculynx. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of the parties, their affiliates, their respective successors and permitted assigns.

 

16.   No Waiver. No failure or delay by either party in exercising any right under these Terms and Conditions shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided to Acculynx herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

 

17.   Severability; Blue-Penciling. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the provision shall be changed by the court or interpreted so as best to accomplish the objectives of the original provisions to the fullest extent permitted by law, and the remaining provisions of these Terms and Conditions shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate any license granted hereunder by notice to the other party.

 

18.   Survival. The obligations of the parties under these Terms and Conditions that by their nature would continue beyond the termination, cancellation or expiration of the license(s) granted hereunder, shall survive termination, cancellation, or expiration of such license(s).

 

19.   Choice of Law. These Terms and Conditions shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of Illinois in the United States, without regarding to its conflict of laws provisions. These Terms and Conditions will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

 

20.   Jurisdiction; Venue. The federal courts of the United States in the Northern District of Illinois, Western Division, and the state courts of the State of Illinois in Winnebago County, Illinois, shall have exclusive jurisdiction and venue to enforce these Terms and Conditions or to otherwise adjudicate any dispute arising out of, or relating to, these Terms and Conditions and any license granted hereunder. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.

 

21.   Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms and Conditions or any license granted hereunder.

 

22.   Headings. The section headings contained in these Terms and Conditions are for reference purposes only and shall not in any way control the meaning or interpretation of these Terms and Conditions.

 

23.   Modification. Acculynx may at any time modify these Terms and Conditions and your continued access of this Web site, the Services or other use of this Web site will be conditioned upon the Terms and Conditions in force at the time of your use. It is your responsibility to review these Terms and Conditions periodically for any changes or modifications, as there will be no individual notices to users regarding such changes or modifications. Users may check for new versions of these Terms and Conditions by checking www.acculynx.com. Your continued use of any of the Services constitutes an affirmative acknowledgment by you of these Terms and Conditions including any subsequent modifications made to them and your agreement to abide and be bound by them.

 

24.   Additional or Different Terms. Additional or different terms and conditions (including without limitation the Acculynx Master Subscription Agreement) may apply to some Services for which your purchase of a subscription and your assent to such additional or different terms and conditions is required in order for you to access or use such Services. To the extent of any inconsistency between these Terms and Conditions and the Acculynx Master Subscription Agreement, the additional terms and conditions set forth in the Acculynx Master Subscription Agreement shall prevail.

 

25.   Entire Agreement. Except as stated in Section 24 above, these Terms and Conditions, the Acculynx Privacy Policy, and any terms and conditions incorporated herein or referred to herein, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this agreement. Except as contemplated to the contrary herein or in any other documents incorporated herein or referred to herein, no modifications, amendment, or waiver of any provisions of these Terms and Conditions shall be effective unless in writing and executed by the party against whom the modification, amendment, or waiver is to be asserted.