2) DISCLAIMER REGARDING CONTENT. NETBRAIN DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT ANY OF THE INFORMATION AVAILABLE THROUGH THE SERVICES OR WEBSITE IS ACCURATE, RELIABLE, CURRENT, COMPLETE OR APPROPRIATE FOR YOUR NEEDS. FURTHER, NETBRAIN DOES NOT WARRANT THAT THE WEBSITE WILL OPERATE IN A SECURE MANNER, ERROR FREE OR UNINTERRUPTED.
3) OWNERSHIP OF INFORMATION. Unless otherwise noted, all right, title and interest in and to the Website and the information made available through the Website, in all languages, formats and media throughout the world, including all copyrights and trademarks therein, are and shall continue to be the exclusive property of NetBrain. To the extent the Website or the Services contain information from third parties pursuant to rights granted as a matter of law (such as principles of “fair use”), NetBrain owns all right, title and interest (including copyright), in all languages, formats and media throughout the world, in the selection, arrangement and presentation of such information on the Website or in the Services, as well as in the selection, arrangement and presentation of other content on the Website and in the Services. Without limiting the foregoing, your access and use of the Website does not grant you any right, title or interest in or to any content posted on the Website. Unless you obtain the prior written authorization from the legal owner (whether NetBrain or a third party), you are not permitted to use any trademarks, service marks or logos displayed on the Website.
EXCEPT AS OTHERWISE EXPRESSLY PERMITTED BY THE PRECEDING PARAGRAPH, YOU AGREE NOT TO DOWNLOAD, UPLOAD, COPY, PRINT, PERFORM, REPRODUCE, PUBLISH, LICENSE, POST, RETRANSMIT, DISSEMINATE, SELL, DISTRIBUTE, PUBLISH, BROADCAST OR CIRCULATE ANY OF THE SERVICES OR MATERIALS IN ANY MANNER OR FOR ANY PURPOSES (WHETHER PERSONAL OR BUSINESS) WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF NETBRAIN. IN ADDITION, YOU SHALL NOT, WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF NETBRAIN, MAKE COPIES OF ANY OF ANY SOFTWARE OR DOCUMENTATION THAT MAY BE PROVIDED, ELECTRONICALLY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, TRANSLATING, DECOMPILING, DISASSEMBLING OR CREATING DERIVATIVE WORKS.
YOU FURTHER AGREE NOT TO USE THE WEBSITE OR INFORMATION MADE AVAILABLE THROUGH THE WEBSITE FOR ANY UNLAWFUL PURPOSE AND AGREE TO COMPLY WITH REASONABLE REQUESTS BY NETBRAIN TO PROTECT THE RESPECTIVE RIGHTS OF NETBRAIN AND ITS AFFILIATES IN THE SERVICES.
5) DISCLAIMER REGARDING LINKS AND OTHER THIRD PARTY CONTENT. The Website and Services may provide you with the ability to access a variety of information, material or other content from third parties (“Third Party Content”), including through links to other websites and/or forums on which users or other third parties may post Third Party Content. Whenever you access Third Party Content, YOU PROCEED AT YOUR OWN RISK. You understand and agree that such third parties are solely liable for all Third Party Content. You further acknowledge that NetBrain disclaims all responsibility to review or screen any Third Party Content, either before or after it becomes available through the Website and/or Services, and cannot and does not guarantee, attest to, verify or otherwise warrant that any Third Party Content is or will be accurate, free from errors, defects or harmful elements, consistent with what it purports to be, appropriate to fit your needs or otherwise safe or non-objectionable. Without limiting the foregoing, any information found in the NetBrain Users Forums, Contributed Models, and Contributed Papers belong to the respective authors, and NetBrain does not endorse, support, validate or necessarily agree with such information/material.
NetBrain provides links to third party sites as a convenience, and does not endorse the content or services offered by these other sites. You agree that NetBrain is not, and shall not be, liable for any material on the Website that you may find objectionable.
6) NO DUTY TO MONITOR THE WEBSITE. You understand and agree that NetBrain has the right, but not the obligation, to monitor the Website, and to remove content, including content you submit, from the Website for any reason. You further understand and agree that NetBrain has the right, but not the obligation, to review content before it is posted to the Website, and to refuse to allow content to be posted for any reason. Any and all decisions on whether or not to retain, disseminate, or remove content posted by users shall be made by NetBrain in its sole discretion.
7) USER CODE OF CONDUCT. The Website may permit you to contribute content, including by posting messages to forums, sharing files and communicating with other users. You may use the Website for lawful purposes only. You agree not to post, upload, e-mail, transmit, distribute, or otherwise make available through the Website any data, text, images, files, links, software, communications, or other material (“Content”) that:
a. NetBrain considers in its sole discretion to violate any applicable laws, including without limitation the laws of the United States, the laws of any state or commonwealth within the United States, and the laws of any other jurisdiction that may apply;
b. restricts or inhibits any other user from using and enjoying the Website;
c. is unlawful, threatening, abusive, harassing, defamatory, obscene, offensive, harmful, obnoxious, pornographic, profane, or indecent, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation;
d. contains viruses, worms, Trojan horses, harmful code, or any other element or component that has a capacity or potential to interrupt, destroy, interfere with, permit the unauthorized use of, or limit the functionality of any computer software or hardware, any telecommunications equipment, or any communications network;
e. violates or infringes the rights of others, including without limitation rights under copyright, trademark, or patent law; rights of privacy or publicity; rights under defamation law; or rights under securities or other applicable law; or
f. contains any other harmful or illegal component.
You further agree that you will not:
i) alter, damage or delete any material appearing on the Website;
ii) disrupt the normal flow of communication on the Website, such as through “spam” email or by other means;
iii) impersonate or claim a relationship with or speak for any business, organization, or person for which you are not authorized to claim such a relationship;
iv) sell or promote any product or service, promote, solicit, or partake in any multi-level marketing or pyramid scheme, or post or transmit any unsolicited, advertising, or promotional materials, including solicitations for credit card numbers or sponsors;
v) violate any operating rule, policy or guideline of your Internet access provider or online service;
vi) use the Website in any manner that could damage, disable, overburden or impair any NetBrain systems, interfere with any other party’s use of the Website, or violate the legal rights of any other party; or
vii) attempt to gain unauthorized access to any feature of the Website or the account of any other user of the Website.
You acknowledge and agree that these prohibitions do not, and shall not be construed to, create any rights in you or any third parties. NetBrain reserves the right (but disclaims any obligation) to prohibit or restrict conduct on the Website and to edit, block, or remove any content, in whole or in part, which NetBrain in its sole discretion believes violates the User Code of Conduct, or is otherwise objectionable.
If you believe that material has been posted that violates any of these prohibitions, or that should otherwise be removed, please contact NetBrain as follows:
NetBrain Technologies, Inc.
15 Network Drive
Burlington, MA 01803
Attention: Legal Department
Fax: (781) 730-0245
You acknowledge and agree that NetBrain may terminate your access to the Website and the Services should you fail to comply with the Website Terms and Conditions, including the User Code of Conduct. Any such termination shall be in NetBrain’s sole discretion and may occur without notice. NetBrain reserves the right to terminate any user’s access to the Website or the Services for any conduct or activity that NetBrain, in its sole discretion, believes is or may be directly or indirectly harmful to other users or to NetBrain, or for any conduct or activity that violates any local, state, federal or foreign laws or regulations.
NetBrain further reserves the right to terminate any user’s access to the Website or Services for any reason or for no reason at all, in NetBrain’s sole discretion, without notice.
9) SHARED FILES; INFORMATION YOU DOWNLOAD. NetBrain cannot and does not guarantee or warrant that information that may be available for downloading through the Website or Services will be free from infection, viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy and security of data input and output, and for maintaining a means external to NetBrain for the reconstruction of any lost information.
10) MATERIALS YOU POST; YOUR LICENSE TO OTHER USERS. By posting or transmitting, inputting or uploading information or content (“User Content”) to the Website, you warrant that such User Content does not violate or infringe the rights of any third parties. In addition, you automatically grant NetBrain and its affiliates and Website users under your intellectual property rights, a royalty-free, perpetual, irrevocable, non-exclusive, worldwide license (with the right to grant sublicenses) to use, copy, modify, distribute, publicly display, perform, and otherwise exploit such Content, without compensation to you.
11) COMPLAINTS OVER PERCEIVED INFRINGEMENT. NetBrain respects intellectual property rights. If you believe that materials posted on the Website infringe your rights under copyright law in specific materials (collectively, a “Work”), please follow the procedure described below to notify NetBrain of your concerns or objections.
a. NetBrain’s Designated Agent: If you believe materials posted on the Website infringe the copyright in your Work, you must direct your concerns to NetBrain’s agent, designated under the Digital Millennium Copyright Act (17 U.S.C. 512) to respond to such concerns (“Designated Agent”):
NetBrain Technologies, Inc.
15 Network Drive
Burlington, MA 01803
Attention: Copyright Agent
Fax: (781) 730-0245
b. Content of Notice: To be effective, your notice to the Designated Agent must contain the following information:
c. A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property.
d. Identification of the copyrighted work that you believe has been infringed.
e. Identification of the material on the Website which you believe is infringing, with sufficient specificity to permit NetBrain to locate the material without undue searching.
f. Information reasonably sufficient to permit NetBrain to contact you, including an address, telephone number and, if available, an e-mail address.
g. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law.
h. A statement by you, made under penalty of perjury, that the information on the notification is accurate and that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
12) PRODUCT DEMONSTRATIONS. Any product demonstrations (“Demos”) that may be available via the Website from time to time may only be used during the time periods for which they are offered. All Demos must be used in accordance with any accompanying instructions and may not be used for any reason other than their intended purpose.
13) ACCESS AND SECURITY. If you elect to register for any Services or other offerings that may be available via the Website from time to time, you agree:
a. to provide true, accurate, current and complete information about yourself as prompted by the applicable registration form (the “Registration Data”); and
b. to maintain and promptly update the Registration Data to keep it accurate.
If you provide any information that is untrue, inaccurate or incomplete, or NetBrain has reason to suspect that you have done so, NetBrain may suspend or terminate your account and refuse any and all current or future use of the Website or any portion thereof. Access to certain parts of the Website requires a username and password. A username and password permit NetBrain to track certain information, such as software license operations. You are responsible for any action connected with the use of your password, and you should not share your password with anyone. To request a new password, please contact NetBrain Technical Support at techsupport(at)netbraintech.com. Customers with a current maintenance agreement may request customer support via the Website. For customer support, a customer will generally be required to submit his/her name, Organization ID and contact information such as phone number, email address and/or facsimile number. Unless you are an authorized user, you will not access or use, or attempt to access or use, any password protected or secure areas of the Website.
14) DISCLAIMER OF WARRANTIES. You agree that neither NetBrain, its affiliates, officers, directors, employees, agents or representatives shall have any liability, contingent or otherwise, for any error, omission, or inaccuracy of the Website or Services, for any decision made or action taken by you or anyone else in reliance upon the Website or Services, or for any harm or injury resulting from any the Website or Services.
THE WEBSITE AND SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR USE AND NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, THE SERVICES OR ANY ASPECT OF THE INFORMATION MADE AVAILABLE VIA THE WEBSITE OR SERVICES. YOU RECOGNIZE THAT THE ACCURACY OF ANY SUCH INFORMATION SHOULD BE CHECKED BEFORE YOU RELY ON IT.
YOU ACKNOWLEDGE THAT DOCUMENTS POSTED TO AND CONTENT AVAILABLE AT THE WEBSITE MAY CONTAIN COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS. SHOULD YOU DOWNLOAD ANY SUCH MATERIALS FROM THE WEBSITE, IT IS YOUR RESPONSIBILITY TO PERFORM ANY ANTI-VIRUS SCANNING OR OTHER PRECAUTIONS AS YOU DEEM NECESSARY. UNDER NO CIRCUMSTANCES WILL NETBRAIN BE RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED BY ANY MATERIALS DOWNLOADED FROM THE WEBSITE AND YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT OR DATA YOU USE IN CONNECTION WITH THE WEBSITE. 15) LIMITATION OF LIABILITY. IN NO EVENT WILL NETBRAIN OR ITS AFFILIATES BE LIABLE TO YOU, YOUR CUSTOMERS OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO, LOST PROFITS, TRADING LOSSES OR DAMAGES THAT RESULT FROM INCONVENIENCE OR DELAY), OR CLAIMS ARISING IN TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), EVEN IF NETBRAIN OR ITS AFFILIATES HAVE BEEN ADVISED OF OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF ANY OF THE FOREGOING. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL NETBRAIN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED (I) THE AMOUNT PAID BY YOU, IF ANY FOR ACCESS TO THE WEBSITE OR THE SERVICES, OR (II) ONE THOUSAND DOLLARS ($1,000.00).
16) INDEMNIFICATION. You agree to indemnify and hold harmless NetBrain and its officers, directors, employees, agents and representatives, from and against any and all claims, actions, demands, losses, damages (actual and consequential), suits, judgments, litigation costs and reasonable attorney’s fees, of every kind and nature, arising from or relating to your use of the Website or the Service and/or your violation of these Website Terms and Conditions or any third party’s rights, including, but not limited to, copyright, proprietary rights, and rights under defamation law.
17) WAIVER OF RIGHT TO SUE. You hereby release NetBrain, its affiliates and their respective officers, directors, employees and agents, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Website or Services, or arising in any way from content posted to the Website by any third party.
If you are a California resident, you hereby waive, to the extent legally permissible, California Civil Code §1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
e. Cumulative Remedies. All rights and remedies set forth herein are cumulative, and NetBrain reserves the right to pursue any and all available remedies, both at law and in equity.
Last Updated: April 15, 2015