Terms of Use/User License
Last Updated August 31, 2007
THIS TERMS OF USE/USER LICENSE (THIS “AGREEMENT”) CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU AND NCURSION (“NCURSION”). CONTINUED USE OF THE NCURSION SERVICE, AS DEFINED BELOW, CONSTITUTES ASSENT TO THE TERMS OF THIS AGREEMENT AS SUCH TERMS MAY BE AMENDED FROM TIME TO TIME. YOUR FAILURE TO ADHERE TO THE TERMS AND OBLIGATIONS INCLUDED HEREIN SHALL CONSTITUTE A BREACH OF THIS AGREEMENT, WHICH MAY RESULT IN PERSONAL LIABILITY FOR YOU UNDER THE INDEMNITY SET FORTH BELOW AND/OR IN IMMEDIATE TERMINATION OF YOUR ACCOUNT AND, AT NCURSION'S SOLE DISCRETION, THE DELETION OF ALL CONTENT RELATED THERETO.
Ncursion is the owner and operator of the website located at http://www.Ncursion.com, and any linked pages or applications (the “Ncursion Site”), and is the provider of the services (the “Ncursion Services”) which are available to You though the Ncursion Site,.
Eligibility Criteria and Representations. You hereby represent that the following are all true:
You are at least 13 years old, and if You are less than 18 years old, You have the permission of Your parents or legal guardian to use the Ncursion Service. (Please be aware that Ncursion may create certain areas on the Ncursion Site that contain adult or mature content. You must be at least 18 years of age to access and view such areas.) If you are not at least 13 years old, please discontinue using the Ncursion Site and the Ncursion Services immediately.
You have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement; and
You have the right to display each and every item of content (whether images, links, documents, “Skins”, or files – “content”) which You have released to the Ncursion Site, including the right to display all copyrights, trademarks, trade names and similar intellectual property interests reflected therein or thereon. Your sharing of content constitutes permission for reproduction/printing of such image by any recipient for his or her personal use and by Ncursion solely to provide the Ncursion Service to You and others, to market the Ncursion Service and/or the Ncursion Site, and to illustrate the operation of the Ncursion Service and/or the Ncursion Site. You understand that the Ncursion Service may involve the transmission of content over various networks and changes to content to conform and adapt to technical requirements of connecting networks, devices or display media. See also, discussion of “Skins” below.
License Grant.
LICENSE. Subject to the terms of this Agreement, Ncursion hereby grants You a limited, non-sublicensable, non-transferable, nonexclusive license to use the software that You have downloaded or are about to download, any software that you have embedded on a third party web site or are about to embed, and any software running on Ncursion's server (“Software”). You may (and in fact are encouraged to) download, install and/or use the Software on a single computer or on a website that is operated and maintained by You, or by someone else who has agreed to be bound by this Agreement. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in Ncursion and its suppliers or licensors. You understand that Ncursion may modify or discontinue offering the Software at any time.
SUPPORT AND UPGRADES. This Agreement does not entitle You to any support, upgrades, updates, add-ons patches, enhancements, or fixes for the Software (collectively, “Updates”). Ncursion, however, may occasionally provide You with automatic Updates to the Software at its sole discretion (and without any advanced notification to You). Any such Updates for the Software shall become part of the Software and subject to this Agreement.
GOVERNMENT USE. If You are a part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item,” “commercial computer software” and “commercial computer software documentation”. In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
Your Obligations. In exchange for Your being able to use the Software, the Ncursion Services and/or the Ncursion Site, You agree to be bound by the following obligations:
Registration:
If You choose to register with Ncursion, You will provide us with an email address You own and use, a password and a username (“User ID”). You shall be solely responsible for maintaining the confidentiality of Your password. You will also update Your registration information on the Ncursion Site from time to time so that it remains true, correct and complete.
You may not:
use a false name or an email address owned or controlled by another person with the intent to impersonate that person or for any other reason;
use as a User ID a name subject to any rights of a person other than Yourself without appropriate authorization; or
otherwise submit false or misleading information to Ncursion.
Prohibited Content. You may not (and will not allow any third party to) post or link to any material or content which:
is libelous, defamatory, obscene, or otherwise violative of any law (each a “Prohibited Posting”), or
constitutes an infringement, misappropriation or violation of the intellectual property, publicity or other proprietary rights of any person or entity (each, an “Infringing Posting”).
No Changes to the Software/Prohibited Uses. You may not and may not allow any third party to:
modify, adapt, disassemble, decompile, translate, reverse engineer or otherwise attempt to discover the source code or structure, sequence and organization of the Software or any portion of the Ncursion Site or the Ncursion Service (except where the foregoing is required by applicable local law, and then only to the extent so required under such laws);
copy or distribute the Software (except for a version that has this license attached where the user agrees to the terms of this Agreement), provided , however , that You may (and are encouraged), to include a Ncursion Ticker on your website.
rent, lease, or use the Software for timesharing or service bureau purposes, or otherwise charge people for use of the Software unless You inform of Your commercial purpose prior to such use;
use the Software in any manner that could damage, disable, overburden, or impair Ncursion's Service or another user's use of the Ncursion Service;
remove, obscure or change any copyright, trademark, hyperlink or other proprietary rights notices (“Notices“) contained in or on the Ncursion Site, Ncursion Service, Ncursion code embeddable or embedded on a third party web site and/or the Software and You shall reproduce such Notices exactly on all permitted copies of the Software;
collect any information about other users or members (including usernames and/or email addresses) for any purpose;
create user accounts by automated means or under false or fraudulent pretenses;
create or transmit unwanted electronic communications such as “spam,” to other users or members of the Ncursion Site and/or Ncursion Service or otherwise interfere with other user's or member's enjoyment of the Ncursion Site and/or Ncursion Service;
submit any content or material that falsely express or imply that such content or material is sponsored or endorsed by Ncursion;
transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; or
use the Ncursion Site or Ncursion Services to violate the security of any computer network or transfer or store illegal material.
Indemnity. You agree to indemnify and hold Ncursion (and any employee, officer, director or affiliate of Ncursion) harmless (including costs and attorneys' fees) from any claim or demand made by any third party due to or arising out of Your access to the Ncursion Site or Service, the violation of this Agreement by You, the infringement by You, or any third party using Your account, of any intellectual property or other right of any person or entity, or for any content posted on the Ncursion Site by you (including claims related to defamation, invasion of privacy, or other violation of a person's rights). Your obligations under the foregoing indemnity may not be offset against any other claim You may have against Ncursion or any Ncursion Person. You remain solely responsible for all content that You upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Software or the Ncursion Service.
Rights of Ncursion/Exculpation of Ncursion. By using the Software, the Ncursion Service and/or the Ncursion Site, You acknowledge and agree,
Ncursion does not claim any copyright or other ownership in any material or content uploaded by You onto the Ncursion Site (other than solely to provide the Ncursion Service to You and others, to market the Ncursion Service and/or the Ncursion Site, to illustrate the operation of the Ncursion Service and/or the Ncursion Site, and an exclusive license in the case of Skins submitted by you (see discussion of Skins, below) simply because You have uploaded it on to the Ncursion Site. You are solely responsible for protecting your own content from loss.
Ncursion has the right to refuse registration of, or cancel Your user account and/or User ID in its discretion for any reason or for no reason. Any content that has been uploaded onto the Ncursion Service may be deleted at such time without notice to You.
Ncursion has the right to make changes to this Agreement, its Privacy Policy, its Copyright Policy or the Ncursion Service at any time without prior notice. Such modifications will be effective no later than the time such the new terms are posted or otherwise implemented on the Ncursion Site.
Ncursion and its licensors own and retain all proprietary rights in the Ncursion Site, the Ncursion Services, and all associated software, content and material. The Ncursion Site is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided herein), create derivative works based on, distribute, perform, display, or in any way exploit, any of the content, software, and/or materials available on the Ncursion Site, or Ncursion Services in whole or in part without the express written agreement of Ncursion. Except as expressly provided herein, Ncursion and its suppliers do not grant You any express or implied rights under any patents, copyrights, trademarks, trade secret, or other intellectual or industrial property rights.
Ncursion has no responsibility for the statements in any message, content or other material posted on or through the Ncursion Site by any user. If Ncursion receives notice that an item on the Ncursion Site is an Infringing Posting or a Prohibited Posting, it will use such efforts as it, in its sole discretion, believes are reasonable, to determine whether such item is an Infringing Posting or a Prohibited Posting, and if it is, to remove all or a portion of such items. You acknowledge, however, that this is a manual process and that Ncursion cannot evaluate or remove such items immediately. NCURSION HAS NO OBLIGATION TO ACCEPT OR DISPLAY ANY CONTENT, AND CONTENT UPLOADED BY YOU MAY BE DELETED BY NCURSION FOR ANY REASON OR FOR NO REASON AT ALL.
If You believe that any material on the Ncursion Site constitutes an Infringing Posting or a Prohibited Posting, please notify Ncursion as soon as possible by sending an email to .
Ncursion is exempt from liability to any person for any claim based upon its good faith disabling of access to or removal of material it believes, in its sole discretion to be an Infringing Posting or a Prohibited Posting, regardless of whether the material ultimately is determined to be infringing or otherwise prohibited. By using the Ncursion Service, You agree that notice to You through an email to the email address You provided in Your profile constitutes reasonable efforts to notify You of any removal or disabling.
Ncursion reserves the right to reveal Your identity (or whatever information we know about You) in the event of a complaint or legal action arising from any message or other content posted by You. Ncursion may log all internet protocol addresses accessing the Ncursion Site and other information about users' access, and maintain backup copies of content indefinitely.
Ncursion may collect and collate a variety of information regarding the use of the Ncursion Site or Ncursion Service by You or by people who use the Ncursion Service through Your website or watch your content through the Ncursion Service on third party websites, and may cause the Software to communicate to Ncursion information about its offline operations. Ncursion is the sole owner of all such information it collects. Collection and management of such information is governed by our Privacy Policy.
Ncursion uses industry-standard security measures to protect the loss, misuse and alteration of the information under our control. Although we make good faith efforts to store the non-public information uploaded to the Ncursion Site or collected by Ncursion in a secure operating environment that is not available to the public, we cannot guarantee complete security. We cannot and do not guarantee that our security measures will prevent third party “hackers” from illegally accessing our site and obtaining access to content or information thereon.
The Ncursion Site may contain advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the Ncursion Site is accurate and complies with applicable laws. We are not responsible for the illegality or any error, inaccuracy or problem in the advertiser's or sponsor's materials.
The Ncursion Site contains links to other websites. We are not responsible for the content, accuracy or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked website on the Ncursion Site or the inclusion of a Ncursion Ticker on a third party's web site does not imply approval or endorsement of that website by us. If you decide to access or post a Ncursion Ticker on these third-party websites, you do so at your own risk.
Limitations.
WARRANTY DISCLAIMER. THE NCURSION SERVICE, THE NCURSION SITE AND THE SOFTWARE IS PROVIDED BY NCURSION ON AN “AS IS” BASIS. NCURSION AND ITS LICENSORS AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR SOFTWARE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE NCURSION SITE OR IN ASSOCIATION WITH THE NCURSION SERVICES. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, NCURSION AND ITS LICENSORS AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NCURSION AND ITS LICENSORS AND AFFILIATES FURTHER DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN OR AVAILABLE ON THE NCURSION SITE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
POTENTIAL UNAVAILABILITY. THE NCURSION SERVICE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. NCURSION SHALL NOT BE LIABLE FOR ANY FAILURE OF THE SOFTWARE, NCURSION SITE OR NCURSION SERVICE. SUCH FAILURE MAY RESULT FROM ANY CAUSE, INCLUDING, BUT NOT LIMITED TO, THOSE BEYOND NCURSION'S REASONABLE CONTROL, SUCH AS MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURE OR DEGRADATION (INCLUDING “LINE-NOISE” INTERFERENCE). YOU AGREE THAT NCURSION SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OF MATERIALS, CONTENT, OR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICE.
LIMITATION OF LIABILITY. NCURSION AND ITS AFFILIATES AND SUPPLIERS WILL NOT BE LIABLE UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF INFORMATION OR DATA. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NCURSION'S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO NCURSION FOR THE NCURSION SERVICES, OR TEN DOLLARS, IF GREATER. YOU SPECIFICALLY ACKNOWLEDGE THAT NCURSION IS NOT LIABLE FOR THE CONTENT SUBMITTED BY ANY USER OR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF A THIRD PARTY. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Please note that a small number of people may experience epileptic seizures when exposed to certain light patterns on a computer screen like those displayed when using Ncursion Services. Consult your physician prior to using the Ncursion Services if you have had any epileptic symptoms (such as eye or muscle twitches, dizziness, altered vision, disorientation, loss of awareness, involuntary movements or convulsions) and discontinue use of the Ncursion Services immediately if you experience any such symptoms
TERM AND TERMINATION. Unless terminated by Ncursion, this Agreement will remain in full force and effect while You use the Software, Ncursion Site and/or Ncursion Services. Subject to the last sentence of this Section 8, You may terminate this Agreement at any time by deleting the Software from Your computer and ceasing to use the Ncursion Service. Ncursion may terminate this Agreement at any time, particularly if You violate any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, You shall destroy and remove from all computers, and other storage media all copies of the Software. Ncursion shall have the right to inspect and audit Your facilities to confirm the foregoing. Your representations in Sections 1 and the provisions of Sections 4 through 9 shall survive any termination or expiration of this Agreement.
THIRD PARTY NOTICES AND LICENSES In order to use the Ncursion Service, You will have to download a Flash Player from Adobe Systems Incorporated. Use of the Flash Player is subject to Adobe's Terms of Service. See http://www.adobe.com/misc/copyright.html Mapping services may use software and other information from Google Maps (See Google Maps' Terms of Service), Yahoo Maps (see Yahoo Maps' Terms of Service) and/or www.geonames.org.
MISCELLANEOUS
Privacy. In addition to the terms of this Agreement, You should be aware that use of the Ncursion Site and/or the Ncursion Service is also governed by our Privacy Policy. Acceptance of this Agreement constitutes acceptance of Ncursion's acceptable use policy for content posted on the Ncursion Site, Ncursion's Privacy Policy, Ncursion's Copyright Policy, and any notices regarding the Ncursion Site, as such policies or notices may be amended from time to time.
Disputes. You agree that any dispute relating to your use of the Ncursion Site and/or Service under this Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions. You agree to personal jurisdiction by and venue in the state and federal courts of the State of California, City of San Deigo, and that any action hereunder must be brought, if at all, within one (1) year from the accrual of the cause of action.
International Use. Ncursion makes no representation that the Software is appropriate or available for use in locations outside the United States, and accessing it from territories where the Software or any feature of the Ncursion Services and/or Ncursion Site is illegal is prohibited. Those who choose to access this website from other locations do so on their own initiative and are responsible for compliance with local laws. The Software may be further subject to United States export controls. No Software may be downloaded from the Ncursion Site or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
No Third Party Beneficiaries. This Agreement is between You and Ncursion. No user has any rights to force Ncursion to enforce any rights it may have against any You or any other User.
Ncursion is an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user of material of the user's choosing, without modification of the content of the material sent or received (“transitory digital network communications”), as well as system caching, storage of material residing on a system or network at the direction of a user, and referral or linkage of users to an online location using information location tools, each through the website located at http://www.Ncursion.com, and any linked pages or applications owned and operated by Ncursion.
Please contact us at with any questions regarding this Agreement.
Copyright Ncursion 2007.