This Ausmate Terms and Conditions document (the Agreement) is a legal contract between the subscriber organization or individual (Subscriber) identified in a AUSMATE order form (Order Form), and Ausmate, Inc. (AUSMATE), that governs your use of AUSMATE’s online style services (and the applications available thereon) available at www.ausmategroup.com (Site). Your acceptance of the Order Form constitutes an application to subscribe to the Site pursuant to the terms of this Agreement, and by clicking the “I agree” button, accessing or using the Site; you confirm your agreement to be bound hereby.
If you are entering into this Agreement on behalf of an organization, you represent and warrant that you have the authority to bind such organization. Any person who has access to the Site by virtue of being designated by the Subscriber as an individual user of the Site (an Authorized User) similarly agrees to be bound hereby. If you are entering into this Agreement on behalf of an educational institution, then your Authorized Users are strictly limited to students, faculty and staff; no alumni may be granted access.
All references to “us,” “our” and “AUSMATE” in this Agreement are intended to refer to AUSMATE (as defined above) and its affiliates. All references to “you,” “your” and “user” in this Agreement are intended to refer to the Subscriber and all Authorized Users.
(a) AUSMATE grants you a non-exclusive, non-transferable, limited right to access the Site, provided that you fully comply with the terms and conditions of this Agreement.
(b) You agree that all you will use data, materials and information that comprise the Site, including visual interfaces, text and written compositions, videos and other audiovisual works, pictorial works such as images, photographs, graphics, pictures, illustrations, and designs, audio recordings and musical compositions, compilations, and any other works of authorship (Content) that you access through use of the Site, only in accordance with the terms and conditions of this Agreement.
(c) Certain areas of the Site may only be open to you if you are a full subscriber or will only be available for a limited period of time. Any time limit applying to your access and use of the Site will be set out in the Order Form.
(d) Certain Content that we license from third parties may be subject to additional guidelines or rules that will be clearly posted on the Site. You are also subject to any such guidelines and rules.
(e) The Content is protected by trademarks, service marks, copyrights, and other intellectual property rights owned by AUSMATE or its Content providers. You agree not to misuse in any way the Content or the Site, including any infringement of trademarks, service marks, copyrights or other intellectual property rights in the Content or the Site.
(f) You agree not to use the Site for any illegal, unethical, fraudulent, misleading, or objectionable purpose or in breach of any law, regulation, or agreement, including CAN-SPAM or other regulations regarding unsolicited email marketing.
(g) You agree not to rent, lease, loan, sell, or otherwise provide access to the Site to anyone other than Subscriber and Authorized Users.
(h) The Subscriber agrees to take necessary measures to procure and ensure the compliance by its uthorized Users with the terms and conditions set forth in this Agreement governing the use of the Site.
2. CHANGES TO SITE
As part of its policy of updating and improving the Site, AUSMATE reserves the right, at its discretion, to make changes to any part of the Site.
(a) The Subscriber warrants that the information the Subscriber has given in the Order Form is accurate and complete.
(b) To use the Site, you must register and provide AUSMATE with accurate and complete registration information.
(c) It is your responsibility to update your registration data and promptly inform AUSMATE of any changes to your information by e-mailing AUSMATE at firstname.lastname@example.org.
(d) As part of the registration process, AUSMATE shall assign to the Subscriber or, at the discretion of AUSMATE, shall allow the Subscriber to select, a user name and password. Each registration is for a single user only.
(e) Each additional Authorized User appointed by the Subscriber shall be assigned (or selected at the discretion of AUSMATE) a separate user name and password for access to the Site; provided, however, that for educational institutions, Authorized Users are not required to register individually.
(f) AUSMATE does not permit any sharing by more than one person of a user name and password or access to the Site through a single name being made available to multiple users on a network; provided, however, that the foregoing restriction does not apply to educational stitutions.
solely responsible for maintaining the confidentiality and security of your account. You agree to otify AUSMATE immediately of any unauthorized use of your user name and password.
4. FEES; BILLING
(a) You agree to pay to AUSMATE, in advance, the non-refundable subscription fee for access to the Site as specified in the Order Form (the Subscription Fee).
(b) You are also responsible for all taxes and other government charges or fees, which AUSMATE may add and bill to your account.
(c) In addition to the charges set forth above, you may incur and are responsible for all charges associated with connecting to the Site, including all telephone access lines, telephone and computer equipment and any service fees necessary to access the Site.
5. USAGE OF CONTENT
If you are a full subscriber, in connection with your use of the Site, and subject to the limitations set forth below, AUSMATE hereby grants you a non-exclusive, non-transferable, limited license to do the following, solely for your product design, development, inspiration, research and manufacturing purposes: view, download and print such Content and create derivative works of pictorial works such as images, photographs, graphics, pictures, illustrations, and designs included within the Content and use such works and your derivative works thereof on or in your products; provided, however, that in the case of subscribing educational institutions and their Authorized Users, your use is limited to non-commercial, educational use only.
(a) The following are strictly forbidden and represent a breach of this Agreement, unless prior written consent is obtained from AUSMATE or the relevant third party Content provider:
(i) incorporation of Content in promotional items (including greeting cards, t-shirts, postcards, posters, phone cards, credit cards, templates, CD covers, cassette covers, board games, and calendars), magazines, newspapers, advertising, editorials, catalogs, flyers, brochures, disposable packaging, book covers, and educational textbooks;
(ii) incorporation of Content in any electronic or digital materials including screensavers, electronic greeting cards, websites, broadcast video, and multimedia including film and video, and CD ROMs;
(iii) resale of Content in its original condition or in a digitally manipulated form;
(iv) incorporation of names or likenesses of individuals from Content on or in your products;
(v) incorporation of distinctive locations, buildings, businesses, personal property or products from Content on or in your products;
(vi) use of AUSMATE or third party trademarks, trade names or service marks on or in your products;
(vii) distribution of Content to parties outside of the Subscriber organization. However, you may provide pictorial works such as images, photographs, graphics, pictures, illustrations, and designs included within Content to your suppliers, vendors, independent contractors and consultants for the sole purpose of aiding you in connection with your product design, development, inspiration, research and manufacturing requirements only. The sharing of such works for the purposes stated in this paragraph, is at your discretion but in no way absolves you from the full responsibilities for all terms and conditions contained within this Agreement; or
(viii) use, or permitting the use of, data or information on the Site for generating any statistical information which is sold, rented published, furnished or in any manner provided to a third party.
(b) Any requests to republish or redistribute Content should be addressed to AUSMATE at clientservices@Ausmate.com.
(c) AUSMATE may provide news e-mail service or other prompts to new Content. Your use of the Content received through the e-mail news service will be subject to the terms and conditions of this Agreement.
(d) Copyright in any software that is made available to you for download from the Site (Software) belongs to AUSMATE or its Software suppliers. You may not install or use any Software unless you agree to be governed by the terms of any license agreement that accompanies or is included with the Software.
(e) You acknowledge that the Content is only for your general information and use and does not constitute any form of advice, recommendation or arrangement by AUSMATE and is not intended to be relied upon by you in making any specific business or investment decisions. Any reliance by you upon any advice, opinion, statement or other information displayed or distributed through the Site is at your sole risk.
(f) Any use of the Site or the Content thereon other than as specifically permitted above is prohibited.
6. YOUR CONTENT
(a) You are solely responsible for any Content that you upload to the Site or transmit through the Site, and you represent, warrant and agree that:
(i) such Content will not be unlawful, harmful, threatening, harassing, defamatory, obscene, pornographic, vulgar, invasive of another’s privacy or right of publicity, infringing of a third party’s intellectual property rights;
(ii) such Content will not be hateful, racially, ethnically, or otherwise objectionable, encouraging of conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law;
(iii) you have all necessary rights to such Content;
(iv) such Content will not harm minors in any way, including transmitting content that violates federal, state, international or any other child pornography laws, child sexual exploitation laws or laws prohibiting the depiction of minors engaged in sexual conduct;
(v) you will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any such Content;
(vi) such Content will not contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software;
(vii) interfere with or disrupt (or attempt to interfere with or disrupt) the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site; or
(viii) provide any information to AUSMATE that is false or misleading, that attempts to hide your identity or that you do not have the right to disclose.
(b) However, you agree that AUSMATE will not be responsible for screening, policing, editing or monitoring any Content posted, viewed, transmitted, reproduced and/or distributed by any person using the Site.
(c) Your sharing of your Content constitutes permission for use by the recipient according to the terms of this Agreement.
You acknowledge that the software, inventions, know-how, databases, data compilations, methods, processes, designs and architecture underlying the Site (Technology) are protected by intellectual property rights. You agree that you will not (and will not allow any third parties to):
(a) use any device, robot, spider, other automatic software or device, or any manual process, to interfere or attempt to interfere with the proper working of the Site, or to monitor use of the Site, without AUSMATE’ prior written permission;
(b) take any action that imposes an unreasonable or disproportionately large load on the Site infrastructure;
(c) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Technology (except that the foregoing restrictions shall only apply to the extent they are allowable under applicable law);
(d) use any network monitoring or discovery software to determine the Site architecture, or extract information about usage, individual identities or users;
(e) circumvent, disable, or otherwise interfere with security-related features of the Site, including any features designed to prevent, limit, or restrict use or copying of any Content; or
(f) bypass robot exclusion headers or other similar measures Ausmate may use to prevent or restrict access to, or caching of, the Site.
THE SITE, INCLUDING CONTENT, IS PROVIDED “AS IS”, WITHOUT WARRANTY OR ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY REGARDING CONTENT, SERVICES, UNINTERRUPTED ACCESS, PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SITE, RESULTS OF USE OF THE SITE OR ANY SOFTWARE LICENSED TO YOU , OR THE AVAILABILITY OR ACCURACY THEREOF. SPECIFICALLY, AUSMATE DISCLAIMS ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK.
9. LIMITATIONS OF LIABILITY
(a) AUSMATE will not be liable to you in any manner whatsoever for any consequences of any delay or interruption in the delivery or updating of the Site.
(b) The Site may contain advertising or sponsorships from time to time. AUSMATE is not responsible for the material provided by such advertisers and sponsors. Further, AUSMATE provides no assurances that it will not take advertisements or sponsorships from competitors of Subscriber. Your correspondence or business dealings with, participation in promotions of, or access, purchase, or utilization of products or services offered by such advertisers or sponsors are solely between you and such third party.
(c) NEITHER AUSMATE NOR ANY OF ITS CONTENT PROVIDERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SITE, INABILITY TO USE THE SITE OR ANY CONTENT ON THE SITE, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR (INCLUDING NEGLIGENCE) OR ANY OTHER CAUSE OF ACTION. THIS LIMITATION 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, OR THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF DATA. YOU SPECIFICALLY ACKNOWLEDGE THAT AUSMATE 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 YOU. IN NO EVENT WILL AUSMATE’s TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT INCLUDING THE SITE AND THE CONTENT EXCEED THE GREATER OF $100 OR THE AMOUNT PAID BY YOU TO AUSMATE DURING THE 12 MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION ARISE.
10. MODIFICATIONS TO TERMS AND CONDITIONS
(a) AUSMATE reserves the right to modify the terms and conditions of this Agreement (including those relating to your use of the Content). Any modification is effective 30 days after upon posting to the Site or immediately upon distribution to Subscriber via e-mail or conventional mail.
(b) Your continued use of the Site following the effective date of notice of any modification(s) to this Agreement shall be deemed an acceptance of all such modifications.
(c) Notwithstanding the foregoing, any modifications that have a material negative impact on you, other than modifications imposed on us by Content providers, shall not be effective until the end of the term of the then- current Order Form.
11. TERM OF AGREEMENT; TERMINATION
(a) This Agreement shall commence on the date on which AUSMATE accepts your application to subscribe to the Site and from which date the Subscriber and Authorized Users shall have access to the Site. The Agreement shall continue for the period set forth in the Order Form and any renewals thereof. Further, if AUSMATE in its sole discretion permits you to continue to use the Site following expiration of the Order Form, the terms and conditions of this Agreement shall continue to apply.
(b) Notwithstanding the above, AUSMATE may terminate this Agreement or suspend your account at any time in the event that you have materially breached (or AUSMATE reasonably suspects that you have materially breached) any provision of this Agreement. At AUSMATE’s option, termination shall be effective after a reasonable cure period.
(c) If AUSMATE terminates this Agreement, or suspends your account for any of the reasons set forth above, AUSMATE will not refund any amounts that you have previously paid. Further, you shall remain liable for any amounts owed to AUSMATE pursuant to the then-current Order Form.
(d) Upon any expiration or termination of this Agreement, all rights and licenses granted herein shall terminate, except that you may continue to manufacture and sell products that incorporate Content and that were designed prior to such expiration or termination; provided that the foregoing rights shall not apply if you are a subscribing educational institution or Authorized User thereof. The provisions of Sections 8, 9 and 12 shall survive.
(e) These remedies are in addition to any other remedies that AUSMATE may have at law or in equity.
12. GENERAL PROVISIONS
(a) Entire Agreement. This Agreement, as modified by AUSMATE pursuant to Section 10, together with the Order Form, constitutes the entire agreement between you and AUSMATE and supersedes all prior agreements with respect to the subject matter hereof. The failure or delay by AUSMATE to enforce any provisions of this Agreement shall not be construed as a waiver of any of AUSMATE’s rights or operate as a waiver of any subsequent breach.
(b) Governing Law; Disputes. The interpretation and enforcement of this Agreement shall be governed by the laws of the State of New York (excluding its choice of law rules). You agree that any claim or dispute you may have against AUSMATE must be resolved by a court located in New York, NY.
(c) International Use. You agree to comply with all local rules of your country regarding online Conduct and acceptable Content. Please note that information published on this Site may refer to products, programs or services that are not available in your country.
(d) Severability. If any term or provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining terms or provisions shall not be affected.
(e) Notices. Except as otherwise set forth herein, all notices required or permitted to be given pursuant to this Agreement shall be sent by e-mail to the appropriate party at the parties addresses contained in the Order Form or as otherwise agreed in writing between the parties. Such notice (if given by e-mail) shall be deemed effective three hours from transmission. In addition, AUSMATE may also give notice to the Subscriber via the Site, and such notice shall be deemed to be effective on the date it first appears on the Site.
(f) Indemnity. The Subscriber agrees to indemnify and hold AUSMATE and its employees, agents, officers, directors and other representatives harmless from and against all costs, losses, liabilities and expenses (including legal fees) which AUSMATE may suffer or incur, in connection with or arising from Subscriber’s or any of the Subscriber’s Authorized Users’ breach of this Agreement, use of the Site, use of Content or unauthorized use of Subscriber’s or any Authorized User’s user name or password.
(g) Assignment. You may not assign, sub-license or otherwise transfer any of your rights or obligations under this Agreement, by operation of law or otherwise.
(h) Interpretation. Sections and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. The words “include” and “including” are illustrative and not limiting.
14. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Site infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Designated Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works at the Site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit AUSMATE to locate the material;
(iv) Information reasonably sufficient to permit AUSMATE to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The AUSMATE Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows: Copyright Agent at Ausmate, Inc., 25 W. 39th Street, New York, NY 10018, or by email at copyright@AUSMATE.com. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.
15. CONTACT INFORMATION
Any feedback, comments, requests for technical support or other communications should be directed to AUSMATE customer service through email@example.com or to Ausmate, Inc.