This Agreement ("Agreement") is by and between Made to Order Software
Corporation ("m2osw") a Californian Corporation and You, your heirs,
your agents, successors and assigns ("You" and "Your"), and is made
effective as of the date of electronic execution, which is when you
register for an electronic account to use the Web site of m2osw.
This Agreement
sets forth the terms and conditions of Your use of the Services
("Services") offered by m2osw on its Web site including all the Software
necessary to offer these Services such as scripts to be run by Your
browser on your computer, and explains m2osw obligations to
You and Your obligations to m2osw in relation to these Services.
This Agreement specifically does not cover m2osw Software that You can
purchase in order to run said m2osw Software on Your computer without
Your browser connected to the Web site of m2osw, whether You purchase
the Software directly from m2osw or any third party authorized to sell
m2osw Software. Each m2osw Software includes its own License Agreement
which You have to agree to be bound to on a Software by Software basis.
This Agreement constitutes the complete and exclusive agreement between
You and m2osw concerning Your use of m2osw Services and supersedes and
governs all prior proposals, agreements, or other communications.
By either utilizing or purchasing m2osw Services, You acknowledge that
You have read, understood and agreed to be bound by all the terms and
conditions of this Agreement. m2osw may at any time amend this
Agreement.
You may view the latest version of this Agreement on the Web site of
m2osw. You can ask for a printed copy of this Agreement to be sent to
you by sending a written request including your address to:
- Term and Modifications of Agreement
You agree that m2osw may at any time modify this Agreement. You agree
to be bound by any changes m2osw may reasonably make to this Agreement
when such changes are made. If You purchased Services
from m2osw, the term of this Agreement shall continue in full force and
effect as long as You take advantage of and use
the Services. In the event You terminate Your usage, m2osw
will not refund any amounts You have paid.
You agree that you will be responsible for notifying m2osw should You
desire to terminate Your use of paid for Services offered by m2osw.
Notification of Your intent to terminate must be provided to m2osw
no earlier than twenty (20) days prior to Your billing date but no later
than five (5) days prior to Your billing date.
- Non Binding Representations
You agree that m2osw shall not be bound by any representations made by
third parties who You may use to purchase Services from m2osw.
Further, any statement of a general nature, which may be posted on
m2osw Web site or contained in m2osw promotional materials, will not
bind m2osw. m2osw may, at times, offer certain promotions with
different charges and features.
This section is to survive termination or cancellation of this Agreement.
- Accurate Information
You agree to maintain an accurate email address in Your account by providing
updates to m2osw as needed. This applies as long as You are using m2osw
Services. You agree You will notify m2osw within thirty (30) days when Your
email address changes. Failure by You, for whatever reason, to do so will
constitute a material breach of this Agreement.
You agree that m2osw may use and rely on any information provided by You for
all purposes in connection with Your use of m2osw Services, subject to the
Privacy section of this Agreement. If You provide an email address that is
inaccurate, not current, false, misleading or incomplete, of if m2osw has
reasonable grounds to suspect that Your email address is inaccurate, not
current, false, misleading or incomplete, m2osw has the absolute right,
in its sole discretion, to terminate its Services and close Your account.
- Privacy
m2osw will not share any of Your personal information with any third party
companies except Your name, Your address and sometimes Your telephone
number when You order Merchandise which is to be shipped to You.
m2osw will keep Your complete billing information (name and address) for
any purchase You make with m2osw for at least 10 years and eventually
longer if required by law.
m2osw may use Your information to contact You if You did opt-in or You did
not opt-out of different schemes proposed by m2osw to help m2osw market
m2osw Software and Services.
m2osw only requires You to choose a user name, a password and one valid
email address to offer You its Services. All other information which can
be provided in Your account offered by m2osw to use m2osw Services are
optional.
You can view the delailed Privacy Policy
of m2osw on the Web site of m2osw. However, the detailed Privacy Policy is
not part of this Agreement.
- Account Security
You agree that You are entirely responsible for maintaining the
confidentiality of Your user name and password and other account
information except for the entries clearly marked as "Public Entries"
in Your account options. You agree that You are entirely responsible
for any and all activities, whether initiated by You, or by others
on Your behalf or not, that occur under Your account.
You agree to notify m2osw immediately of any unauthorized use of Your account
or any other breach of security. You agree m2osw will not be liable for any
loss that You may incur as a result of someone else using Your account,
either with or without Your knowlegde. You further agree that You
could be held liable for losses incurred by m2osw or any other party due to
someone else using Your account or password.
For security purposes, You are asked to keep account access information in a
secure location and take all the necessary precautions to prevent others
from gaining access to Your user name and password.
- No Unlawful Conduct or Improper Use
As a condition of Your use of m2osw Services, You agree not to
use them for any purpose that is unlawful or prohibited by these terms and
conditions, and You agree to comply with any applicable local, state, federal
and international laws, government rules and other requirements. You agree
that You will not be entitled to a refund of any fees paid to m2osw if, for
any reason, m2osw takes corrective action with respect to Your improper or
illegal use of its Services.
m2osw reserves the right at all times to disclose any information as m2osw
deems necessary to satisfy any applicable law, regulation, legal process or
governmental request.
m2osw, at its sole discretion, reserves the right at all times to edit,
refuse to post or to remove, in whole or in part, any information or
materials offered by You to m2osw.
If You have purchased Services, m2osw has no obligation to
monitor Your use of the Services. m2osw reserves the right to
review Your use of the Services and to cancel the Services in
its sole discretion. m2osw reserves the right to terminate Your
access to the Services at any time, without notice, for any
reason that m2osw deems as unlawful or improper. m2osw considers
Spam as being unlawful, whether it it is legal or not in your
own county, state or country.
m2osw reserves the right to terminate offering its Services to You
if Your usage of the Services results in, or is the subject of
legal action or threatened legal action with or without merit
against m2osw or its contractors, agents, employees, directors,
shareholders and affiliates.
Except as set forth below, m2osw may also cancel Your use of the
Services, after thirty (30) days notice.
m2osw will cancel Your use of the Services immediately if You use
the Services in association with morally objectionable activities
or any activities which could hurt a child in any way. Such
objectionable activities include, but are not limited to:
-
activities designed to harm minors in any way;
-
activities involving any type of pornography;
-
activities designed to defame, enbarass, harm, abuse, threaten,
slander or harass third parties;
-
activities prohibited by the laws of the United States and/or
foreign territories in which You live or conduct business;
-
activities designed to encourage unlawful behavior by others,
such as hate crimes, terrorism;
-
activities that are tortuous, vulgar, obscene, invasive
of the privacy of a third party;
-
illegally gaining access to other computers or networks
("hacking"); and
-
distribution of Internet viruses or similar destructive
activities.
Not withstanding anything to the contrary herein, in the event m2osw
cancels Your Services during the first thirty (30) days after You purchase
the Services, You will receive a refund of any fees paid to m2osw in
connection with the Services being canceled. In the event m2osw revokes Your
Services because they are being used in associateion with spam or morally
objectionable activities, no refund will be issued. You agree You will not
be entitled to a refund of any fees paid to m2osw if, for any reason, m2osw
takes corrective action with respect to Your improper or illegal use of its
Services.
- Release and Assumption of Risk
m2osw offers fantasy weapons for sale. All of these weapons are
intended for display only.
By purchasing any weapon sold by m2osw, You expressly warrant that
You are in compliance with all applicable Federal, State, Local and
International laws and regulations regarding the purchase, ownership,
and use of these weapons. You expressly agree to indemnify and hold
harmless m2osw for all claims resulting directly or indirectly from
the purchase, ownership, or use of any weapon You purchased in
violation of applicable Federal, State, Local and International laws
or regulations. You further expressly agree to indemnify and hold
harmless m2osw for all claims resulting directly or indirectly from
the improper use of any weapon.
This section is to survive termination or cancellation of this Agreement.
- No Spam; Liquidated Damages
You agree that m2osw may immediately terminate Your account if it
believes, in its sole discretion, that You are using it to transmit
or is otherwise connected with any spam or other unsolicited bulk email.
In addition, if actual damages cannot be reasonably calculated then
You agree to pay m2osw liquidated damages of $100 for each piece of
spam or unsolicited bulk email transmitted from or otherwise connected
with Your account, otherwise you agree to pay m2osw's actual damages.
This section is to survive termination or cancellation of this Agreement
if such termination or cancellation is connected with any spam or
other unsolicited bulk email.
- Intellectual Property
You agree that m2osw and its licensors hold all rights, titles and
interests in all the Services offered by m2osw, including other
rights related to intangible property, unless otherwise indicated.
Note that m2osw utilizes Free Software and unless said Free
Software is expressly copyrighted by m2osw or its licensors, it
is not the property of m2osw or its licensors.
You acknowledge that no title or interest in m2osw or its licensors
Intellectual Property Rights is being transferred to You and You
agree to make no claim of interest in any such Services.
You understand and agree that all the content and materials contained
in this Agreement, the m2osw Web site and m2osw Services are all
protected by the various copyright, patent, trademark, service mark
and trade secret laws of the United States, as well as any other
applicable proprietary rights and laws, and that m2osw and its
licensors expressly reserve their rights in and to all such content
and materials.
You further understand and agree that You are prohibited from using,
in any manner whatsoever, any of the content or materials described
above without the express written permission of m2osw or its
licensors. No license or right under any copyright, patent trademark,
service mark or other proprietary right or license is granted to
You or conferred upon You by this Agreement.
This section is to survive termination or cancellation of this Agreement.
- Use of m2osw Services
You are granted a limited, non-exclusie, non-transferable and
non-assignable license to use the Services of m2osw for such purposes
as are ordinatry and customary. You are free to use the Services on
any computer.
You agree to not alter or modify m2osw Services. You agree You are not
authorized to combine m2osw Services with any other Services or Software,
create derivative works based upon m2osw Services, nor are You authorized
to integrate any plug-in or enhancement which uses or relies upon m2osw
Services. You further agree not to reverse engineer, decompile or
otherwise attempt to uncover the source code of any Software used to
run m2osw Services and sent to you in compiled form.
- e-Store
You can purchase Software and Merchandise at the m2osw e-Store.
The m2osw e-Store functionality is considered to be an integral part of
m2osw Services and is covered by this Agreement. The Software and other
Merchandise for sale in the m2osw e-Store are not part of the Services
and thus they are not directly covered by this Agreement except
for weapons as mentioned in the section with the heading:
"Release and Assumption of Risk". The following paragraphs
describe the use of the m2osw e-Store Services.
Each Software purchased at the m2osw e-Store has its own license
agreement that you must accept before using said Software.
You agree to pay m2osw in full at the time You order the Software and
Merchandise. All fees, including applicable taxes, shipping and
handling fees, are due immediately.
Our Merchandise is shipped as soon as possible, usually on the next
business day. You should receive m2osw Merchandise within two (2) or
three (3) business days. However, m2osw does not provide exact delivery
schedules. Some orders may take more than seven (7) days or even more
depending on availability. m2osw will send you an email if the
delivery cannot happen in seven (7) days or less. In case a Merchandise
You ordered cannot be delivered in less than seven (7) days,
You can with two (2) business days cancel Your order for a full
refund including shipping and handling fees.
m2osw tries its best to keep its stock current. m2osw removes
Merchandise from its e-Store when it becomes unavailable.
However, it can happen that one or more items of Merchandise You
order become unavailable before m2osw removes them from m2osw e-Store.
When that happens, You will be notified by email and You can
either choose another item of Merchandise for the same price or
ask for a refund.
m2osw will replace or refund any broken, defective or otherwise
damaged Merchandise that You purchased at the m2osw e-Store
with the following restrictions:
-
m2osw will either replace Your Merchandise or refund You
in full except any shipping and handling fees;
-
You must fill a
"30 Day Money-Back Guarantee"
report
and wait for instructions on how to proceed to get
your replacement or refund including where to ship the
Merchandise;
-
Merchandise found broken on delivery must be reported to
the person delivering the Merchandise to You as being
broken or damaged; You must write down what the problem
is on the delivery slip;
-
Merchandise breaking in normal use or found defective
within seven (7) days of delivery are also entitled to
replacement or refund; Merchandise damaged by You are
not entitled to any replacement or refund; You agree
further that m2osw will, in its sole discretion,
determine whether the Merchandise was really broken
in normal use or were really defective;
-
You must fill out the
"30 Day Money-Back Guarantee"
report form within eight (8) days of the date of delivery for You
to be entitled to a free replacement or a refund;
-
You will not be entitled to any replacement or refund if Your
report is received after eight (8) days from the delivery
date; and
-
the shipping fees to return the Merchandise to m2osw
are at Your own expense.
m2osw offers You a thirty (30) day money-back guarantee, no questions
asked, on all Software and Merchandise that You purchase at the m2osw
e-Store with the following restrictions:
-
the Merchandise needs to be in perfect conditions: not broken,
not scratched, not bent, or other similar defect;
-
m2osw will refund You in full except any shipping and handling fees;
-
You must fill a
"30 Day Money-Back Guarantee"
report form and wait for instructions on how to proceed to get
your refund including where to ship the Merchandise;
-
You will be entitled to a full refund only if You fill a
"30 Day Money-Back Guarantee"
report form of Your intend to stop using the Software
and/or return Merchandise You purchased within thirty
(30) days from the date of Your order;
-
You will not be entitled to any refund if You report Your
intend to stop using the Software and/or return Merchandise
after thirty (30) days from the date of Your order;
-
stop using the Software means deleting all the copies of
the Software that You made and therefore never run the
Software You purchased again, on any computer;
-
Merchandise do not need to be shipped or received within the
thirty (30) days period, however m2osw requires You to ship
all Merchandise items You want to return within three (3)
business days from the date You requested Your refund;
-
all Merchandise items to be shipped back to m2osw must be in
their original package protected at least as well as when it
was shipped to You;
-
m2osw will issue You a refund only after m2osw receives the
Merchandise shipped back and only if the merchandise is
in the original package and was properly protected for
shipping; and
-
the shipping fees to return the Merchandise to m2osw
are at Your own expense.
You further agree to look at Your Software license whenever You
request the return of a Software. The license will include the
necessary information on how to stop using a Software You returned.
- Fees and Payment
As consideration for the paid for Services purchased by You and provided
to You by m2osw, You agree to pay m2osw in full at the time You order the
Services. All fees are due immediately and are non-refundable unless
otherwise expressly noted, even if Your Services are suspended,
terminated, or transferred prior to the end of the Services term.
m2osw expressly reserves the right to modify pricing through email
notification and/or notice on its Web site. Payment may be made by You
by providing a valid credit card.
If for any reason m2osw is unable to charge Your Payment Method for the full
amount owed m2osw for the Services provided, or if m2osw is charged a
penalty for any fee it previously charged to Your Payment Method, You agree
that m2osw may pursue all available remedies in order to obtain payment.
You agree that among the remedies m2osw may pursue in
order to effect payment, shall include but will not be limited to,
immediate cancellation without notice to You of any Services
registered or renewed on Your behalf. m2osw reserves the right to charge a
reasonable administrative fee for administrative tasks outside the scope of
its regular Services, including additional costs that it may incur in
providing the Services and pass along to You. These include, but are not
limited to, customer service issues that cannot be handled over email but
require personal service, fees incurred by third parties You have elected to
use as Payment Methods, including PayPal and disputes that require legal
services. These charges will be billed to the Payment Method we have on file
for You.
You agree that You are solely liable for arranging that Your Services are
renewed, and that m2osw shall not be liable to You or any third party if it
is unable to charge Your Payment Method in order to renew Your Services.
- Representations and Warranties
You hereby represent and warrant that You have the right, power,
legal capacity and appropriate authority to enter into this Agreement,
and that You own and have not transferred to any other person or entity
any of the rights, claims or interests that are the subject of this
Agreement. You represent and warrant that You are 18 years of age or
older, or that you have an agent authorized by law to represent you
who is 18 years of age or older who is entering into this Agreement
on your behalf. You warrant that each action You make is being done
in good faith and that You have no knowledge of it infringing upon
or conflicting with the legal rights of a third party or a third
party's trademark or trade name.
This section is to survive termination or cancellation of this Agreement.
- Limitation of Liability
In no event shall m2osw be liable to You or any other person for any
indirect, incidental, consequential, special, exemplary or punitive damages,
including loss of profit or goodwill, for any matter, whether such liability
is asserted on the basis of contract, tort (including negligence), breach of
warranties, either express or implied, any breach of this agreement, your
inability to use the Services, Your loss of data or files or
otherwise, even if m2osw has been advised of the possibility of such
damages.
Some States or countries may not allow such a broad exclusion or limitation
on liability for damages as contained herein. In such States or countries,
m2osw liability is limited to the full extent permitted by law. You agree
that in no event shall m2osw's maximum aggregate liability exceed the
total amount paid by You for the particular Services in dispute purchased
from m2osw.
- Disclaimer of Warranties
m2osw expressly disclaims all warranties of any kind, whether express or
implied, including, but not limited to, the implied warranties of
merchantability, fitness for a particular purpose and non-infringement.
Services are provided on an "as is" and "as available" basis. m2osw
makes no warranty that its Services will meet your requirements,
or that the Software or Services will be uninterrupted, timely or
error free, or that defects will be corrected. m2osw does not warrant, nor
make any representations regarding the use, or results of, any of the
Services it provides, in terms of their correctness, accuracy, reliability,
or otherwise.
Some jurisdictions do not allow the disclaimer of implied warranties, in
which event that foregoing disclaimer may not apply to You.
This section is to survive termination or cancellation of this Agreement.
- Indemnification
You agree to defend, indemnify and hold harmless m2osw and its contractors,
agents, employees, officers, directors, shareholders, licensors and affiliates from
any loss, liability, damages or expenses, including reasonable attorney
fees, resulting from any third party claim, action, proceeding or demand
related to Your breach of this Agreement or the use of the
Services You purchased from m2osw and this whether or not You are the one
using the Services and whether or not the user makes use of
the Services with Your permission.
In addition, You agree to indemnify and hold m2osw harmless from any loss,
liability, damages or expenses, including reasonable attorney fees, arising
out of any breach of any representation of warranty provided herein, any
negligence or willful misconduct by You, or any allegation that Your account
infringes a third person's copyright, trademark or prioritary or
intellectual property right, or misappropriates a third person's trade
secrets. This indemnification is in addition to any indemnification required
of You elsewhere. Should m2osw be notified of a pending law suit, or receive
notice of the filing of a law suit, m2osw may seek a written confirmation
from You concerning Your obligation to indemnify m2osw. Your failure to
provide such a confirmation may be considered a breach of this Agreement.
You agree that m2osw shall have the right to participate in the defense of
any such claim through counsel of its own choosing. You agree to notify
m2osw of any such claim promptly in writing and to allow m2osw to control
the proceedings. You agree to cooperate fully with m2osw during such
proceedings.
You agree You will not be entitled to a refund of any fees paid to m2osw if,
for any reason, m2osw takes corrective action with respect to Your improper
or illegal use of its Services. You also agree that if m2osw is notified
that a complaint has been filed with a governmental, administrative or
judicial body, against You, then m2osw, in its sole discretion, may take
whatever action m2osw deems necessary regarding modification, assigment of
and/or control of your account to comply with the actions or requirements
of the governmental, administrative or judicial body until such time as
the dispute is settled.
This section is to survive termination or cancellation of this Agreement.
- Governing Law, Venue; Waiver of Trial by Jury
This Agreement shall be deemed entered into in the County of Sacramento
in the State of California. You agree that the laws and judicial decisions
of Sacramento County, California, shall be used to determine the validity,
construction, interpretation and legal effect of this Agreement. You agree
that any action relating to or arising out of this Agreement shall be
brought in the courts of Sacramento County, California.
This section is to survive termination or cancellation of this Agreement.
- Consultation with Legal Counsel
You acknowledge that:
-
You have been advised to consult with Your own legal counsel
regarding the meaning for and the effect on You of this Agreement
and whether execution and delivery of this Agreement is in Your
best interests;
-
You have received no advice or explaination from m2osw or its
legal counsel concerning the meaning for or the effect on You
of this Agreement or whether execution and delivery of this
Agreement by You is in Your best interests; and
-
You have consulted with Your own legal counsel to the extent
that You deemed necessary.
You agree to consult your legal counsel at your own expense.
- Notices
You agree that all notices (except for notices concerning breach of this
Agreement) from m2osw to You may be posted on the Web site of m2osw. Notices
concerning breach will be sent either to the email or postal address You
have on file with m2osw. In either case, delivery shall be deemed to have
been made five (5) days after the date sent.
Notices from You to m2osw shall be made either by email, sent to the email
address notices@m2osw.com,
or first class registered mail with return receipt to m2osw at:
Made to Order Software Corporation
Attn: Legal Dept.
9275 Blue Oak Drive
Orangevale, CA 95662
USA
This section is to survive termination or cancellation of this Agreement.
- Headings
The headings in this Agreement are descriptive only and in the event of a
conflict between a heading and the underlying terms of this Agreement, the
terms of this Agreement shall control.
This section is to survive termination or cancellation of this Agreement.
- Entire Agreement
You agree that this Agreement constitute the complete and only Agreement
between You and m2osw regarding the Services contemplated herein.
This section is to survive termination or cancellation of this Agreement.
- Severability
You agree that the terms of this Agreement are severable. If any part of
this Agreement is determined to be unenforceable or invalid, that part of
the Agreement will be interpreted in accordance with applicable law as
closely as possible, in line with the original intention of both parties to
the Agreement. The remaining terms and conditions of the Agreement will
remain in full force and effect.
This section is to survive termination or cancellation of this Agreement.
- Waiver
The failure of m2osw to enforce any of the provisions within this Agreement
against You or others shall not be construed to be a waiver of the right of
m2osw thereafter to enforce such provisions.
This section is to survive termination or cancellation of this Agreement.
- Force Majeur
m2osw will make every effort to keep its Services
operational. However, certain technical difficulties and other factors
outside of its control may, from time to time, result in temporary service
interruptions. You agree not to hold m2osw liable for any of the
consequences of such interruptions.
This section is to survive termination or cancellation of this Agreement.
- Survival
Sections marked with the sentence:
"This section is to survive termination
or cancellation of this Agreement."
shall survive any termination or cancellation of this Agreement.
This section is to survive termination or cancellation of this Agreement.
- No Third Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to confer upon
any third party any rights, remedies, obligations, or liabilities under or
by reason of this Agreement, except as expressly provided in this Agreement.
This section is to survive termination or cancellation of this Agreement.
