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Thank you for using the myObservatory Portal (herein after referred to as "myObservatory" or "Software"). By downloading, installing or using this software or any portion thereof you agree to be bound by the following Terms of Service.
1. USE AND RESTRICTIONS
The software is made available to and may be used by you only for testing and evaluation only according to these Terms of Service and the Software documentation.
3. PROPRIETARY RIGHTS
You acknowledge that (a) the Software contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) WEBH2O owns all right, title and interest in and to the Software, and software provided through or in conjunction with the Software, including without limitation all Intellectual Property Rights therein and thereto. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree that you will not, and will not allow any third party to, (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software, unless otherwise permitted, (ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Software, (iii) use the Software to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or (iv) remove, obscure, or alter WEBH2O's copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software. The content presented to you as part of the Software is protected by Intellectual Property Rights which are owned by WEBH2O, its partners, and others who provide that Content to WEBH2O. You may not, nor may you allow others to, copy, distribute, display, modify, or otherwise use the Content except as it is provided to you through the Software, unless you have been specifically told that you may do so by WEBH2O. WEBH2O and its licensors make no representations or warranties regarding the accuracy or completeness of this information.
You agree to hold harmless and indemnify WEBH2O, and its subsidiaries, affiliates, officers, agents, and employees from and against any claim, suit or action arising from or in any way related to your use of the Software or your violation of these Terms of Service, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, WEBH2O, as applicable, will provide you with written notice of such claim, suit or action.
5. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: a) YOUR USE OF SOFTWARE IS AT YOUR SOLE RISK. SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WEBH2O AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED. b) WEBH2O AND ITS LICENSORS MAKES NO WARRANTY (I) THAT SOFTWARE WILL MEET YOUR REQUIREMENTS, (II) THAT SOFTWARE WILL BE ERROR-FREE OR BUG-FREE, (III) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE, AND (IV) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. c) ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL.
6. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WEBH2O AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WEBH2O OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SOFTWARE OR TO ACCESS CONTENT OR DATA; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (V) ANY OTHER MATTER RELATING TO THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. UNDER NO CIRCUMSTANCES SHALL WEBH2O, OR ANY THIRD PARTY WHO MAKES ITS SOFTWARE OR CONTENT AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE BE LIABLE TO YOU OR ANY USER ON ACCOUNT OF YOUR USE OR MISUSE OF THE SOFTWARE OR SUCH THIRD PARTY SOFTWARE OR CONTENT. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF WEBH2O AND/OR A THIRD PARTY SOFTWARE OR CONTENT PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OR MISUSE OF, INABILITY TO USE, OR RELIANCE ON THE SOFTWARE AND ALL THIRD PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE AND ANY THIRD PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
7. MISCELLANEOUS PROVISIONS
a) Choice of Law and Forum. These Terms of Service will be governed by and construed in accordance with the laws of the State of California, without giving effect to the conflict of laws provisions of California or your actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms and Conditions to be unenforceable, the remainder of these Terms and Conditions will continue in full force and effect. In event of a dispute arising under this Agreement, each party shall make reasonable, good-faith effort to resolve such dispute informally, including participation in non-binding mediation with a paid mediator, with each side to bear one-half of such mediator costs and to bear their own attorney fees and costs. Such mediation will take place at JAMS headquarters in San Francisco, California. In the event the dispute cannot be resolved informally, the dispute shall be resolved through binding arbitration, pursuant to the Federal Arbitration Act and JAMS commercial arbitration rules and procedures, such arbitration to take place at JAMS headquarters in San Francisco, with each side to bear one-half of such arbitration costs, and each side to bear their own attorney fees and costs.
b) Waiver and Severability of Terms. The failure of WEBH2O to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms and Conditions shall remain in full force and effect.
c) Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
d) These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of these Terms and Conditions will be effective only if in writing and signed by WEBH2O and/or a third party who make its software available in conjunction with or through the Software.