1. Definitions “Capalino’s website” is an on-line service operated by Capalino, Inc. (“Capalino”) on the World Wide Web of the Internet, consisting of information services and content provided by Capalino, affiliates of Capalino, and/or other third parties. “User” means each person who establishes or accesses a connection (“Session”) for access to and use of Capalino’s website.
2. General (A) This Agreement, which incorporates by reference other provisions applicable to use of Capalino’s website, governing the use of certain specific material contained in Capalino’s website, sets forth the terms and conditions that apply to use of Capalino’s web site by User. By using Capalino’s website (other than to read this Agreement for the first time), User agrees to comply with all of the terms and conditions hereof. The right to use Capalino’s website is personal to User and is not transferable to any other person or entity. User is responsible for all use of User’s Session (under any screen name or password) and for ensuring that all use of User’s Session complies fully with the provisions of this Agreement. User shall be responsible for protecting the confidentiality of User’s password(s), if any. (B) Capalino shall have the right at any time to change or discontinue any aspect or feature of Capalino’s website, including, but not limited to, content, hours of availability, and equipment needed for access or use.
3. Changed Terms Capalino shall have the right at any time to change or modify the terms and conditions applicable to User’s use of Capalino’s website, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on Capalino’s website, or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use of Capalino’s website by User after such notice shall be deemed to constitute acceptance by User of such changes, modifications or additions.
4. User Conduct (A) User shall use Capalino’s website for lawful purposes only. User shall not post or transmit through Capalino’s website any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without Capalino’s express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by a User that in Capalino’s discretion restricts or inhibits any other User from using or enjoying Capalino’s website will not be permitted. User shall not use Capalino’s website to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users to become Users of other on-line information services competitive with Capalino’s web site. (B) Capalino’s website contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of Capalino’s website are copyrighted as a collective work under the United States copyright laws. Capalino owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. User may download copyrighted material for User’s personal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of Capalino and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. User acknowledges that it does not acquire any ownership rights by downloading copyrighted material. (C) User shall not upload, post or otherwise make available on Capalino’s website any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with User. User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of Capalino’s website, User automatically grants, or warrants that the owner of such material has expressly granted Capalino the royalty-free, perpetual, irrevocable, nonexclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. User also permits any other User to access, view, store or reproduce the material for that User’s personal use. User hereby grants Capalino the right to edit, copy, publish and distribute any material made available on Capalino’s website by User. (D) The foregoing provisions of Section 4 are for the benefit of Capalino, its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
5. Disclaimer of Warranty; Limitation of Liability (A) USER EXPRESSLY AGREES THAT USE OF CAPALINO’S WEBSITE IS AT USER’S SOLE RISK. NEITHER CAPALINO, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT CAPALINO’S WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF CAPALINO’S WEBSITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH CAPALINO’S WEBSITE. (B) CAPALINO’S WEBSITE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. (C) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. USER SPECIFICALLY ACKNOWLEDGES THAT CAPALINO IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH USER. (D) IN NO EVENT WILL CAPALINO, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING CAPALINO’S WEBSITE OR THE CAPALINO’S WEBSITE SOFTWARE, BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE CAPALINO’S WEBSITE. USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON CAPALINO’S WEBSITE. (E) IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER, CAPALINO, NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN CAPALINO’S WEBSITE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES. CAPALINO, ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL HAVE NO LIABILITY FOR INVESTMENT DECISIONS BASED ON THE INFORMATION PROVIDED. NEITHER, CAPALINO, NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THIS INFORMATION. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION.
6. Monitoring Capalino shall have the right, but not the obligation, to monitor the content of Capalino’s website, including chat rooms and forums, to determine compliance with this Agreement and any operating rules established by Capalino and to satisfy any law, regulation or authorized government request. Capalino shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on Capalino’s website. Without limiting the foregoing, Capalino shall have the right to remove any material that Capalino, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
7. Indemnification User agrees to defend, indemnify and hold harmless Capalino, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use of Capalino’s website by User or User’s Session.
8. Termination Either Capalino or User may terminate this Agreement at any time. Without limiting the foregoing, Capalino shall have the right to immediately terminate User’s Session in the event of any conduct by User which Capalino, in its sole discretion, considers to be unacceptable, or in the event of any breach by User of this Agreement. All of the remaining provisions listed under this agreement shall survive termination of this Agreement.
9. Trademarks Capalino, Capalino’s website and logos are trademarks of Capalino, Inc.. All rights reserved. All other trademarks appearing on Capalino’s website are the property of their respective owners.
10. Miscellaneous This Agreement and any operating rules for Capalino’s website established by Capalino constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.