1. USER AGREEMENT
The following are terms of a legal agreement (the “Agreement”) between you and Visante Inc. (“Visante” or “us”) that sets forth the terms and conditions for your use of this web site (the “Site”). The Site is owned and operated by Visante. This Site is being provided to you expressly subject to this Agreement. By accessing, browsing and/or using the Site, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement, and to comply with all applicable laws and regulations. The terms and conditions of this Agreement form an essential basis of the bargain between you and Visante. You agree to use the Content and Site only for your own personal, non-commercial and lawful purposes.
Visante reserves the right to amend this Agreement at any time and will notify you of any such changes by posting the revised Agreement on the Site. You should check this Agreement periodically for changes. All changes shall be effective upon posting. Your continued use of the Site after any change to this Agreement constitutes your agreement to be bound by any such changes. Visante may terminate, suspend, change, or restrict access to all or any part of this Site without notice or liability.
The contents of the Visante Site, including but not limited to all text, graphics, images, information, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, design, structure, “look and feel” and other material (“Content”) contained on the Site are for informational and educational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of a physician or other qualified health care provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on this Site.
VISANTE WILL USE REASONABLE EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION ON THIS SITE BUT MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND AS TO ITS ACCURACY, CURRENCY OR COMPLETENESS. YOU AGREE THAT ACCESS TO AND USE OF THIS SITE AND THE CONTENT IS AT YOUR OWN RISK. VISANTE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER VISANTE NOR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS SITE SHALL BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, ARISING OUT OF ACCESS TO, USE OF OR INABILITY TO USE THIS SITE, OR ANY ERRORS OR OMISSIONS IN THE CONTENT THEREOF.
The copyright in all material on this Site, including without limitation the Content, is held by Visante or by the original creator of the material and is protected by U.S. and International copyright laws and treaties. The Content may not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the express prior written consent of Visante. The Content is and shall remain the property of Visante. You may not modify, participate in the sale or transfer of, or create derivative works based on any Content, in whole or in part. The use of the Content on any other web site, including by linking or framing, or in any networked computer environment for any purpose, is prohibited without Visante’s prior written approval. You also may not, without Visante’s express written permission, “mirror” any material contained on this Site on any other server. Any unauthorized use of any Content on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications statutes and regulations.
You may not use the Content or the Site in any manner that would constitute a violation of any applicable law, regulation, rule or ordinance of any nationality, state, or locality or of any international law or treaty, or that could give rise to any civil or criminal liability. You may not use the Site in any manner that could damage, disable, overburden, or impair the Site, or interfere with any other party’s use and enjoyment of the Site. You may not obtain or attempt to obtain any Content or other materials or information through any means not intentionally made available through the Site. Any unauthorized use of the Site, including but not limited to unauthorized entry into Visante’s systems or misuse of any information posted on the Site is strictly prohibited.
4. TRADEMARKS AND SERVICE MARKS
Visante and the Visante logo (collectively the “Visante Marks”) are trademarks or service marks of Visante. Other company, product, and service names and logos used and displayed on this Site may be trademarks or service marks owned by Visante or others. You may not use, copy, display, distribute, modify or reproduce any of the trademarks or service marks found on the Site unless in accordance with written authorization by us, and nothing on this Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the trademarks or service marks on the Site without prior written permission from the owners of such trademarks or service marks in each instance. Visante prohibits use of any of the Visante Marks as part of a link to or from any site unless establishment of such a link is approved in writing by us in advance. Any questions concerning any Visante Marks, or whether any mark or logo is a Visante Mark, should be referred to Visante.
5. LINKS TO THIRD-PARTY SITES
6. DISCLAIMER OF WARRANTIES
THE ACCURACY, ADEQUACY, AVAILABILITY, TIMELINESS, RELIABILITY, COMPLETENESS, AND/OR USEFULNESS OF THE SITE AND/OR ANY CONTENT IS NOT GUARANTEED BY VISANTE, ANY OF ITS AFFILIATES OR PROVIDERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS OR LICENSORS (COLLECTIVELY THE “VISANTE PARTIES”).
THE SITE AND ALL OF THE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR TITLE. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OF YOUR USE OF THE CONTENT. VISANTE PARTIES DO NOT WARRANT THAT THE CONTENT IS FREE OF ERRORS OR OMISSIONS, NOR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THIS DOES NOT AFFECT THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
VISANTE MAY DISCONTINUE OR MAKE CHANGES IN THE CONTENT AND SITE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU AND WITHOUT ANY LIABILITY TO YOU. ANY DATED INFORMATION IS PUBLISHED AS OF ITS DATE ONLY, AND VISANTE PARTIES DO NOT UNDERTAKE ANY OBLIGATION OR RESPONSIBILITY TO UPDATE OR AMEND ANY SUCH INFORMATION. VISANTE RESERVES THE RIGHT TO TERMINATE ANY OR ALL SITE OFFERINGS OR TRANSMISSIONS WITHOUT PRIOR NOTICE TO YOU. THE SITE COULD CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. USE OF THE SITE IS AT YOUR OWN RISK.
7. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY VISANTE PARTIES BE LIABLE FOR ANY DAMAGES, INCLUDING GENERAL, SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR ANY OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR BUSINESS INTERRUPTION) OF ANY KIND, ARISING FROM OR RELATING IN ANY WAY TO THE USE OR INABILITY TO USE BY ANY PARTY OF THE CONTENT, THE SITE OR ANY THIRD-PARTY SITE, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, EVEN IF VISANTE PARTIES, OR REPRESENTATIVES THEREOF, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES. VISANTE IS NOT LIABLE FOR ANY DEFAMATORY OR ILLEGAL CONDUCT OF ANY USER. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS SITE IS TO STOP USING THE SITE. IF YOUR USE OF MATERIALS FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. IF THE FOREGOING LIMITATION IS FOUND TO BE INVALID, THE VISANTE PARTIES’ TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
You indemnify and agree to hold harmless the Visante Parties from and against any and all claims, losses, expenses, demands or liabilities, including attorneys’ fees and costs (collectively “Losses’), arising out of your use of the Site in violation of this Agreement or in violation of any applicable law. You further agree that you will cooperate fully in the defense of any claims asserting Losses. Visante Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such claim or matter without the written consent of Visante.
9. USE OF PERSONALLY IDENTIFIABLE INFORMATION
10. TERMINATION This Agreement is effective until terminated by Visante. Visante may terminate this Agreement at any time without notice, or suspend or terminate your access and use of the Site at any time, with or without cause, in Visante’s absolute discretion and without notice.
11. GENERAL PROVISIONS
You may not assign this Agreement or any rights granted herein. Visante may assign or transfer this Agreement or its rights or obligations hereunder without notice and without your prior approval. This Agreement is for the sole benefit of the parties hereto and do not create any third-party beneficiaries, whether intended or incidental. This Agreement will inure to the benefit of Visante and its successors and assigns. The failure of Visante to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
Applicable Law and Dispute Resolution
THIS AGREEMENT AND ALL OTHER ASPECTS OF YOUR USE OF THE SITE AND CONTENT SHALL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES. You agree that you will notify Visante in writing of any claim or dispute concerning or relating to the Site and the information or services provided through it, and give Visante a reasonable period of time to address it before bringing any legal action, either individually, as a class member or representative, or as a private attorney general, against Visante. You and Visante agree to submit to the exclusive jurisdiction of the courts located in Minnesota, to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that Visante shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
In any litigation or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, in addition to any other relief to which the prevailing party may be entitled, the prevailing party will be entitled to recover its reasonable attorney fees, costs and expenses to resolve the dispute and to enforce and recover the final judgment.
The Site is controlled and operated by Visante from its offices in St. Paul, Minnesota. This Site is not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to applicable law or regulation. By offering the Site and Content, no distribution or solicitation is made by Visante to any person to use the Site or Content in jurisdictions where the provision of the Site and/or Content is prohibited by law.
If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall be enforced to the fullest extent possible, and the remaining provisions of the Agreement shall remain in full force and effect.
Section Titles; Survival
The section titles in this Agreement are for convenience only and have no legal or contractual effect. Sections 2, 3, 4, 5, 6, 7, 8 and 11 of this Agreement, shall survive any termination of this Agreement.
This Agreement and any other electronic documents, policies and guidelines incorporated herein shall be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable against any party hereto as a signed writing; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Any electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding shall, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.