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1. DISCLAIMER OF WARRANTIES
MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT: (A) MEMBER'S USE
OF THE SERVICE IS AT MEMBER'S SOLE RISK. PROVIDER AND ITS SUPPLIERS PROVIDE
THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION
MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE "AS IS" AND WITHOUT
ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NON-INFRINGEMENT. (B) PROVIDER AND ITS SUPPLIERS MAKE NO
WARRANTY THAT (i) THE SERVICE WILL MEET MEMBER'S REQUIREMENTS, (ii) THE SERVICE
WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF
ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED
BY MEMBER THROUGH THE SERVICE WILL MEET MEMBER'S EXPECTATIONS. (C) ANY MATERIAL
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT MEMBER'S
OWN DISCRETION AND RISK, AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE
TO MEMBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF
ANY SUCH MATERIAL.
2. LIMITATION OF LIABILITY
IN NO EVENT SHALL PROVIDER AND/OR ITS SUPPLIERS BE LIABLE FOR
ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES
WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR
PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF PROVIDER OR ANY OF ITS
SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR
IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE SERVICE, (B) THE PROVISION
OF OR FAILURE TO PROVIDE SERVICES, (C) FOR ANY INFORMATION, SOFTWARE, PRODUCTS,
SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING
OUT OF THE USE OF THE SERVICE, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY
ON THE SERVICE, OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES
DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT
APPLY TO MEMBER. IN NO EVENT SHALL PROVIDER'S AGGREGATE LIABILITY TO MEMBER
AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE
AMOUNT MEMBER ACTUALLY PAYS TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE
(12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR $500.00, WHICHEVER IS LESS.
Without limiting the foregoing, neither Provider nor its suppliers is responsible
for any of Member's data residing on the Service or Provider's suppliers' hardware.
Member is responsible for backing-up Member's data and information that may
reside on the Service or Provider's suppliers' hardware, whether or not such
information is produced through the use of the Service. It is Member's responsibility
to take the necessary steps to ensure that Member's primary means of business
is maintained (if applicable).
3. Provider Proprietary Rights/Software Licenses
Member acknowledges and hereby agrees that the Service and any
software used in connection with the Service (the "Software") contain
proprietary and confidential information that is protected by applicable intellectual
property and other laws. Member further acknowledges and agrees that content
contained in sponsor advertisements or information presented to Member through
the Service, advertisers and/or Discussion Boards is protected by applicable
copyrights, trademarks, service marks, patents and other proprietary rights
and laws.
Provider provides Member with a non-exclusive, non-transferable,
limited license to use the Software, which Member agrees to use in accordance
with this Agreement. Member may not sub-license or charge others to use or access
the Software without first obtaining written permission or a written agreement
from Provider. The Software is owned by Provider and/or its suppliers and is
protected to the maximum extent permitted by copyright laws and international
treaty provisions. Any reproduction, modification, creation of derivative works
from or redistribution of the Software is expressly prohibited, and may result
in severe civil and criminal penalties. The Software, its structure, sequence
and organization and source code are considered trade secrets of Provider and
its suppliers and are protected by trade secret laws. WITHOUT LIMITING THE FOREGOING,
COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER
REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. MEMBER MAY NOT DECOMPILE
OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE
CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
4. Indemnification
Member agrees to indemnify and hold Provider and its suppliers,
affiliates, partners, subsidiaries and employees (collectively, the "Indemnified
Parties") harmless from any and all claims and demands, losses, liability
costs and expenses (including, but not limited to, reasonable attorneys' fees),
incurred by an Indemnified Party arising out of or related to (i) Member's breach
of this Agreement; (ii) any information submitted, posted, or otherwise provided
by Member and/or to Provider and/or its affiliates; (iii) any dispute or litigation
between an Indemnified Party and a third party caused by Member's actions; and
(iv) Member's negligence or violation or alleged violations of any rights of
another. These obligations will survive any termination of Member's relationship
with Provider or Member's use of the Service. To the fullest extent permitted
by law, the foregoing indemnity will apply regardless of any fault, negligence,
or breach of warranty or contract of Provider and/or its suppliers, affiliates,
partners, subsidiaries and employees.
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