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These terms constitute an agreement (hereinafter interchangeably, “Agreement,” or “terms”) between you and WebMerge, , an Indiana corporation (“WebMerge”). These terms govern your use of any Website or Web page operated by WebMerge. You represent that you are at least 18 years of age and have attained the age of majority in the location where you reside, and that any information you submit is correct.
WEBMERGE OFFERS THE WEBSITE TO YOU CONDITIONED ON YOUR ACCEPTANCE OF THESE TERMS. WEBMERGE PROVIDES THIS WEBSITE TO YOU, YOUR EMPLOYEES, AGENTS, AND CONTRACTORS, AND ANY OTHER ENTITY ON WHOSE BEHALF YOU ACCEPT THESE TERMS (COLLECTIVELY "YOU," “You” or “you”). THESE TERMS ARE ENTERED INTO BY AND BETWEEN WEBMERGE AND YOU, AND YOU ACCEPT THEM BY: (a) ACCESSING THIS WEBSITE; (b) USING THE WEBSITE OR ITS CONTENTS IN ANY MANNER; AND/OR (c) ACKNOWLEDGING AGREEMENT WITH THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEBSITE.
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIABILITY AND AN EXCLUSIVE REMEDY. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN.
1.2 This website ("Website") includes without limitation: (a) the WebMerge Website; and other on-line services accessible via the Website (collectively the "Services"); (b) information such as technical, contractual, product, program, pricing, marketing, and other valuable information ("Information"); and (c) content such as data, text, software, music, sound, photographs, graphics, video, messages, or other materials ("Content"). WebMerge controls and operates its websites from one or more locations and makes no representation that this Website is appropriate or available for use in all locations. If You are using the Website on behalf of Your employer, You represent and warrant that You are authorized to accept these Terms on Your employer's behalf, and that Your employer agrees to indemnify You and WebMerge for violations of these Terms. In addition to the Terms and unless otherwise noted, the standard WebMerge agreement governs your relationship with WebMerge generally.
2. YOUR OBLIGATIONS AND CONDUCT
2.1 In consideration of Your use of the Website, You agree to: (a) provide accurate, current, and complete information about You as may be prompted by a registration form on the Website (the "Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any information You provide to WebMerge, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to information and Registration Data. You have sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Website.
You agree not to post to the website or to share with any member or other WebMerge member any information about any third party (including but not limited to name, employer, business market segment, e-mail addresses, and phone or fax numbers) that is confidential or that the third party does not want shared or disclosed on the website, to other WebMerge members, or to other persons.
2.3 You are entirely responsible for all Content that You upload, post or otherwise transmit via the Website. You agree not to upload, post or otherwise transmit via the Website Content that: (a) is inaccurate, harmful, obscene, pornographic, defamatory, racist, violent, offensive, harassing, or otherwise objectionable to WebMerge or other users of the Website; (b) includes unauthorized disclosure of personal information; (c) violates or infringes anyone's intellectual property rights; or (d) 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. WebMerge reserves the right to edit or remove Content that violates these Terms or that contains third-party commercial advertisements.
2.4 You agree that You will not use the Website to: (a) transmit spam, bulk or unsolicited communications; (b) pretend to be WebMerge or someone else, or spoof WebMerge's or someone else's identity; (c) forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any Content transmitted through the Services; (d) misrepresent your affiliation with a person or entity; (e) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users' ability to use the Website; (f) engage in activities that would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations having the force of law, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm; or (g) post, share, collect or store personal data about other users or persons unless authorized by such users or persons.
3. CONFIDENTIALITY OF WEBMERGE INFORMATION
3.1 You may obtain direct access via the Website to certain confidential information of WebMerge and its suppliers, including without limitation technical, contractual, product, program, pricing, marketing and other valuable information that should reasonably be understood as confidential ("Confidential Information"). You must hold Confidential Information in strict confidence. Title to Confidential Information remains with WebMerge and its suppliers.
3.2 Your obligations regarding Confidential Information expire five (5) years after the date of disclosure. Upon termination of the Terms or WebMerge's written request, You must cease use of Confidential Information and return or destroy it.
3.3 The Terms impose no obligation upon You with respect to Confidential Information that You can establish by legally sufficient evidence: (a) You possessed prior to Your receipt from WebMerge, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission by You, or otherwise without violation of the Terms; (c) You obtained from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) You independently developed without the use of Confidential Information and without the participation of individuals who have had access to it, or (e) in response to a valid order by a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either party under these Terms and as disclosed after prior notice to WebMerge adequate to afford WebMerge the opportunity to object to the disclosure.
4. CONTENT SUBMITTED TO WEBMERGE
4.2 WebMerge does not routinely monitor Content, but WebMerge and its designees reserve the right to monitor, restrict access to, edit or remove any Content that is available via the Website.
5. DELIVERY OF E-MAIL
WebMerge will attempt to deliver all of the e-mail that is addressed to Your e-mail address and sent through WebMerge. However, the nature of e-mail is such that WebMerge cannot guarantee delivery of such e-mail.
You agree to defend, indemnify and hold WebMerge and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, suppliers, alliance members, s, members, other partners, employees and representatives harmless from any claim, demand or liability, including reasonable attorneys' fees, made by any third party due to or arising out of Your Content, Your use of or connection to the Website (including any use by You on behalf of Your employer), Your violation of the Terms, or Your violation of any rights of another.
7. NOTICES; MODIFICATION AND TERMINATION OF SERVICES; AMENDMENT OF TERMS
WebMerge may provide notice to You via email, regular mail, or posting notices or links to notices on the Website. WebMerge reserves the right at any time to modify, suspend or terminate the Services (or any part thereof), and/or Your use of or access to them, with or without notice, at any time, and for any reason, with or without cause. WebMerge may also delete, or bar access to or use of, all related Information and files. WebMerge will not be liable to You or any third-party for any modification, suspension, or termination of the Services, or loss of related information. WebMerge may amend these Terms at any time by posting the amended terms on this Website.
8. ADVERTISEMENTS AND PROMOTIONS
WebMerge may run advertisements and promotions from third parties on the Website. Your correspondence or business dealings with, or participation in promotions of, advertisers other than WebMerge found on or through the Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such advertiser. WebMerge is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such non-WebMerge advertisers on the Website.
9. CONTENT PROVIDED VIA LINKS
You may find links to other Internet sites or resources on the Website. You acknowledge and agree that WebMerge is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. WebMerge will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Except as expressly authorized by WebMerge or by Content providers, You agree not to reproduce, modify, rent, lease, loan, sell, distribute, mirror, frame, republish, download, transmit, or create derivative works of the Content of others, in whole or in part, by any means. You must not modify, decompile, or reverse engineer any software WebMerge discloses to You, and You must not remove or modify any copyright or trademark notice, or other notice of ownership.
10.2 "WebMerge Trademarks" means all names, marks, brands, logos, designs, trade dress, slogans and other designations WebMerge uses in connection with its products and services. You agree not to use the WebMerge Trademark and Logo for any purpose without the prior express written consent of WebMerge. You may not remove or alter any WebMerge Trademarks, or co-brand your own products or material with WebMerge Trademarks, without WebMerge's prior written consent. You acknowledge WebMerge's rights in WebMerge Trademarks and agree that any use of WebMerge Trademarks by You shall inure to WebMerge's sole benefit. You agree not to incorporate any WebMerge Trademarks into Your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with computer or Internet-related products, services or technologies.
10.3 WebMerge is committed to respecting others' intellectual property rights, and we ask our users to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement on our Website, please contact WebMerge in writing.
10.4 Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. Permission is granted to display, copy, distribute and download Content owned by WebMerge on this Website provided that: (a) the copyright notice pertaining to the Content remains, and a permission notice (e.g., "Used with permission") is added to such Content; (b) the use of such Content is solely for personal and non-commercial use; (c) such Content will not be copied or posted on any networked computer or published in any medium, except as explicitly permitted by valid permission or license covering such materials; and (d) no modifications are made to such Content. This permission terminates automatically without notice if You breach any of the terms or conditions in this Section 10.4. Upon termination, You must immediately destroy any downloaded and/or printed Content.
11. DISCLAIMER OF WARRANTIES
11.1 YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE, INCLUDING THE INFORMATION, SERVICES AND CONTENT (AS DEFINED IN SECTION 1.2) IS PROVIDED ON AN "AS IS" "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. WEBMERGE DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WEBMERGE DISCLAIMS ANY WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE. WEBMERGE MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE WEBSITE. THERE ARE NO REPRESENTATIONS OR WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.
11.2 WEBMERGE MAKES NO WARRANTY OR REPRESENTATION THAT: (a) THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) YOU WILL BE ABLE TO RETRIEVE DATA OR CONTENT YOU HAVE PLACED ON THE WEBSITE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM THE WEBSITE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (e) ANY ERRORS IN THE WEBSITE WILL BE CORRECTED.
11.3 YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY CONTENT FROM THE WEBSITE, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES, SPYWARE, OR OTHER HARMFUL ITEMS ON THE INTERNET.
12. LIMITATION OF LIABILITY; YOUR EXCLUSIVE REMEDY
12.1 TO THE FULL EXTENT PERMITTED BY LAW, WEBMERGE IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, EVEN IF WEBMERGE HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE THE WEBSITE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE WEBSITE; (c) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (d) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE.
12.2 TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
12.3 IF YOU ARE DISSATISFIED WITH THE WEBMERGE WEBSITE, YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR YO HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST WEBMERGE OR ANY PARTY WITH RESPECT TO THIS AGREEMENT OR THE WEBSITE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBMERGE WEBSITE.
CHANGES TO THE WEBMERGE WEBSITE; ADDITIONAL LIABILITY LIMITATION WEBMERGE MAY CHANGE THE WEBSITE OR DELETE FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON.WITHOUT LIMITING THE GENERALITY OF SECTIONS 11 AND 12, YOU ACKNOWLEDGE AND AGREE THAT WEBMERGE IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF SECTIONS 11 AND 12, YOU ACKNOWLEDGE AND AGREE THAT WEBMERGE IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF WEBSITE, (2) ANY INCOMPATIBILITY BETWEEN THE WEBMERGE WEBSITE AND OTHER WEB SITES, SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE WEBSITE IN AN ACCURATE OR TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES AVAILABLE FROM THIRD PARTIES THOUGH LINKS CONTAINED ON THE WEBSITE. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN SECTIONS 11, 12 AND 14 OF THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ARE NOT INTENDED TO DEPRIVE YOU OF ANY MANDATORY PROTECTIONS PROVIDED TO YOU UNDER APPLICABLE LAW.
15. TERMINATION; ACCESS RESTRICTION
Your right to access this website terminates immediately when you cease to be a WebMerge member. WebMerge may terminate this Agreement, or terminate or suspend your access to the Website at any time, with or without cause, with or without notice. Upon such termination or suspension, your right to use the Website will immediately cease. UPON SUCH TERMINATION OR SUSPENSION, ANY INFORMATION YOU HAVE STORED ON THE WEBSITE MAY NOT BE RETRIEVED LATER.
16. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES
All claims for enforcement, breach or violation of duties or rights under this Agreement will be adjudicated under the laws of the State of Indiana without reference to conflict of laws principles. You hereby irrevocably consent to the exclusive jurisdiction and to have any lawsuits heard in the state or federal courts located in Indianapolis, Indiana.
17. INTERPRETING THE AGREEMENT; ASSIGNMENT
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. WebMerge may assign this Agreement, in whole or in part, at any time with or without notice to You. You may not assign this Agreement, or assign, transfer or sublicense your rights, if any, in the Website. Except as expressly stated herein, this Agreement constitutes the entire agreement between You and WebMerge with respect to the Website and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and WebMerge with respect to the Website. The section titles in the Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
18. YOU HAVE LIMITED TIME TO BRING YOUR CLAIM
YOU AND WEBMERGE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
19. GENERAL TERMS
19.1 The Terms constitute the entire agreement between You and WebMerge relating to their subject matter, and cancel and supersede any prior versions of the Terms. No modification to the Terms will be binding, unless in writing and signed by an authorized WebMerge representative. You must not assign or otherwise transfer the Terms or any right granted hereunder. You also may be subject to additional terms and conditions that may apply when You use WebMerge or third-party products or services.
19.2 You agree that any material breach of Sections 2, 3, 4, 6, and 10 of the Terms will result in irreparable harm to WebMerge for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, WebMerge will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if WebMerge seeks such an injunction.
19.3 Services, Content, and product derived or obtained from this Website may be subject to the U.S. export laws and the export or import laws of other countries. You agree to comply strictly with all such laws and, in particular, shall: (a) obtain any export, reexport, or import authorizations required by U.S. or your local laws; (b) not provide Services, Content, or direct product from this Website to prohibited countries and entities identified in the U.S. export regulations.
19.4 Rights and obligations under the Terms which by their nature should survive will remain in full effect after termination or expiration of the Terms.
19.5 Any express waiver or failure to exercise promptly any right under the Terms will not create a continuing waiver or any expectation of non-enforcement.
20. SUBSCRIPTION/PAYMENT TERMS
20.1 All payments to WebMerge for subscriptions are non-refundable.
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