Digital Cyclone Inc.'s Terms of Use and Notices
AGREEMENT BETWEEN YOU AND DIGITAL CYCLONE, INC.
IMPORTANT: THE FOLLOWING IS A LEGAL AGREEMENT BETWEEN YOU AND DIGITAL CYCLONE, INC. ("DCI") REGARDING THE TERMS AND CONDITIONS GOVERNING YOUR USE OF MOBILE MY-CASTSM. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING THE ENCLOSED PERSONAL IDENTIFICATION NUMBER(S) (EACH A "PIN") AND/OR USING THE MOBILE MY-CAST SERVICE. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THESE TERMS AND CONDITIONS GOVERNING THE USE OF MOBILE MY-CAST. THE TERM "YOU" REFERS TO THE INDIVIDUAL, LEGAL ENTITY AND/OR AUTHORIZED EMPLOYEE OF SUCH LEGAL ENTITY, AS APPLICABLE, THAT REGISTERS FOR OR USES MOBILE MY-CAST. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT USE THE ENCLOSED PIN TO ACTIVATE YOUR MOBILE MY-CAST SERVICE AND YOU MUST NOT USE THE MOBILE MY-CAST SERVICE.
These Terms and Conditions govern your use of Mobile My-Cast, including your use of the Web sites maintained by DCI. These Terms and Conditions along with the specific terms of your Mobile My-Cast subscription, which are described in the cover letter and/or e-mail sent to you by DCI, are collectively referred to as this "Agreement." In the event that any of the specific terms of your Mobile My-Cast subscription sent to you by DCI conflict with any provision of these Terms and Conditions, the specific terms of your Mobile My-Cast subscription from DCI shall prevail.
By using Mobile My-Cast, you express your understanding and agreement that you are bound by this Agreement. If you are unwilling to be bound by this Agreement, do not use the enclosed PIN(S) to activate your Mobile My-Cast service and do not use Mobile My-Cast.
DCI may change or modify these Terms and Conditions at any time. Any changes or modifications to these Terms and Conditions shall be effective immediately upon notice thereof, which may be given to you by any means, including without limitation, posting on DCI’s Web sites or by electronic or conventional mail. By continuing to use Mobile My-Cast after such notice is given, you express your understanding of and agreement with the changed or modified Terms and Conditions.
Purpose and Use
Access to Mobile My-Cast is restricted to you and your authorized employees who are assigned passwords enabling access to Mobile My-Cast. Except as expressly authorized by DCI in this Agreement, neither Mobile My-Cast nor any of its contents may be reproduced, duplicated, copied, sold, or otherwise used or exploited for any purpose. You may not create any links to Mobile My-Cast from any other Web site or by any method not expressly approved by DCI in writing.
PIN Access
Access to Mobile My-Cast requires the use of the enclosed PIN(S) issued by DCI. Each PIN is to be kept confidential and is not to be disclosed to anyone other than you or your employee to whom it is assigned. You are responsible for all activities that occur through the use of the enclosed PIN(S), including unauthorized use, and for promptly notifying DCI of any unauthorized use of the PIN(S) assigned to an employee or any other breach of security with respect to Mobile My-Cast. DCI, in its sole and absolute discretion, may at any time terminate or otherwise restrict access to and use of Mobile My-Cast by you or any of your authorized employees.
Grant of License
DCI grants to you a personal, non-exclusive, non-transferable, non-assignable license to store, manipulate, analyze, reformat, print, and display the information, documents, and products contained in or made available in connection with Mobile My-Cast solely for your own internal business purposes. All rights not expressly granted to you by DCI are retained by DCI. Unauthorized use or resale of Mobile My-Cast is expressly prohibited. You shall not copy, license, sublicense, sell, transfer, make available, distribute, create derivative works based on or assign this license or Mobile My-Cast to any third party, any such attempt is void and is a breach of this Agreement. You shall not use any information displayed via Mobile My-Cast in conjunction with any business or commercial enterprise not authorized or contemplated by the specific terms of your Mobile My-Cast subscription provided to you by DCI.
Scope of Permitted Use
You agree to use Mobile My-Cast only for the lawful purposes described above. You shall not: (i) post or transmit on or through any DCI Web site any libelous, obscene or otherwise unlawful information of any kind; (ii) interfere with, disable, modify, decompile, or reverse engineer Mobile My-Cast in any way; (iii) engage in any conduct involving Mobile My-Cast that would constitute a criminal offense or give rise to civil liability under any local, state, federal or other law or regulation; or (iv) upload, post, reproduce or distribute to or through Mobile My-Cast, including any DCI Web site, any material protected by copyright, privacy or other proprietary right without first obtaining a written license from the owner thereof.
DCI Intellectual Property
Mobile My-Cast and all of its content (including, without limitation, all text, images and software) are the property of DCI or its licensors and are protected by United States and international copyright, trademark and/or other laws. In addition, certain information available via Mobile My-Cast is DCI trade secret or confidential information designated as such and available only to select persons for limited use. The authorization granted by this Agreement to use Mobile My-Cast is a limited license, not a transfer of title, and neither this Agreement nor any use of Mobile My-Cast shall transfer any other right, title or interest in any material or information available via Mobile My-Cast. DCI reserves all intellectual property rights not expressly granted to you under this Agreement.
Except as expressly authorized by this Agreement, you may not (a) use or disclose price or other information which is identified as being confidential or otherwise restricted; (b) remove or alter any copyright, trademark or other proprietary notice from any portion of Mobile My-Cast; or (c) except as expressly permitted by local law, disassemble, decompile or otherwise attempt to "reverse engineer" any software contained in or accessible via Mobile My-Cast. You also shall not create any Internet "link" to Mobile My-Cast or "frame" or "mirror" any content contained on, or accessible via Mobile My-Cast.
Use of Marks
Regardless of any other provision herein, the trademarks of DCI and the Digital Cyclone, My-Cast and Mobile My-Cast names shall not be used by you or other parties in any way, unless you hold a separate written trademark license agreement with DCI.
Costs and Billing
You will pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide DCI with valid credit or purchase order information as a condition to signing up for Mobile My-Cast. You must also report and pay any applicable taxes to the appropriate governmental agency. Purchase orders may be subject to credit approval.
DCI will automatically renew and bill your credit card or issue an invoice to you as follows: (a) every month for monthly subscriptions, (b) every quarter for quarterly subscriptions, (c) upon the commencement of the annual term and then at each subsequent anniversary of that initial term for continuous annual subscriptions, or (d) upon such other terms as may be expressly provided to you by DCI. All invoices shall be due and payable within 30 days after the invoice date.
If timely payment is not received or cannot be charged to your credit card for any reason, DCI reserves the right to either suspend or terminate your access to Mobile My-Cast and terminate this Agreement. If DCI receives a cancellation notice from you, you will be obligated to pay the balance due on your account. You agree that DCI may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. You further agree to pay all of DCI’s costs of collection (including attorneys’ fees) with respect to unpaid fees.
DISCLAIMERS
DCI shall not be responsible for any failure or malfunction in power or communications, or in your equipment used to access Mobile My-Cast, or the failure or refusal of third party transmission intermediaries to perform, continue or renew their contractual arrangements with DCI, or any inability to perform occasioned by such or by labor strife, war, riot or other events beyond the control of DCI. If Mobile My-Cast is disrupted by any such event, DCI’s obligations hereunder shall be suspended during the period of occurrence for such disrupting event.
Mobile My-Cast may contain technical, typographical or other errors or inaccuracies and may not be complete or current. DCI does not warrant that any material or information provided via Mobile My-Cast is accurate, complete or current. DCI may change any material or information provided via Mobile My-Cast at any time without prior notice, but DCI does not make any commitment to update material or information with respect to Mobile My-Cast. DCI makes no representation that Mobile My-Cast is applicable, lawful or appropriate for access or use in locations outside of the United States and its territories and possessions.
DCI has not reviewed all of the Web sites to which links appear on DCI’s Web sites and is not responsible for their contents. The inclusion of any such link on DCI’s Web sites is for your convenience only and does not imply endorsement by DCI of any linked Web site, the use of which is at your own risk.
YOU EXPRESSLY AGREE THAT USE OF MOBILE MY-CAST IS AT YOUR SOLE RISK. IN THE EVENT MOBILE MY-CAST IS UNAVAILABLE DURING SEVERE WEATHER, YOU SHOULD KEEP ADVISED OF ALL WATCHES AND WARNINGS ISSUED BY THE NATIONAL WEATHER SERVICE. YOU ARE SOLELY RESPONSIBLE FOR ANY ACTION OR LACK OF ACTION TAKEN TO PRESERVE LIFE OR PROPERTY.
WARRANTY DISCLAIMER
MOBILE MY-CAST AND ALL CONTENT ARE MADE AVAILABLE BY DCI AND ACCEPTED BY YOU "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS, AND WITHOUT ANY WARRANTIES WHATSOEVER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, UNINTERRUPTED USE, QUIET ENJOYMENT, SYSTEM INTEGRATION, OR ACCURACY OR RELIABILITY, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. YOU ASSUME ALL RISK AS TO THE QUALITY, ACCURACY, SUITABILITY, AVAILABILITY AND PERFORMANCE OF MOBILE MY-CAST AND ACKNOWLEDGE THAT MOBILE MY-CAST MAY BE REVISED, ALTERED AND CHANGED FROM TIME TO TIME. MOREOVER, DCI ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR EQUIPMENT, SOFTWARE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN MOBILE MY-CAST, OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGE, VIDEO, OR AUDIO VIA MOBILE MY-CAST.
LIMITATION OF LIABILITY
DCI ASSUMES NO LIABILITY FOR LOSS OR DAMAGE WHATSOEVER AND HOWSOEVER RESULTING FROM ANY USE OF, INABILITY TO USE, OR RELIANCE UPON MOBILE MY-CAST. IN NO EVENT WILL DCI BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, BUSINESS INTERRUPTION, OR OTHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR CLAIMS, WHETHER IN CONTRACT, IN TORT (INCLUDING DCI’S OWN NEGLIGENCE), OR OTHERWISE (INCLUDING STRICT LIABILITY) ARISING OUT OF OR RELATING TO MOBILE MY-CAST, OR THE USE OR INABILITY TO USE MOBILE MY-CAST, EVEN IF DCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IF ANY WARRANTY DISCLAIMER OR LIMITATION ON LIABILITY IN THIS AGREEMENT IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF DCI UPON ANY CLAIM WHETHER IN CONTRACT, IN TORT (INCLUDING DCI’S OWN NEGLIGENCE), OR OTHERWISE (INCLUDING STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH MOBILE MY-CAST SHALL NOT EXCEED THE GREATER OF THE LICENSE FEES ACTUALLY COLLECTED FROM YOU BY DCI IN CONNECTION WITH RECEIVING MOBILE MY-CAST OR FIVE HUNDRED DOLLARS ($500.00).
Basis of the Bargain; Failure of Essential Purpose
You acknowledge that DCI has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and limitations on damages set forth in this Agreement, and that the same form an essential basis of the bargain between you and DCI. You agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
Indemnification
You shall indemnify and hold DCI, its licensors, and each such party’s parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with your use of Mobile My-Cast, your breach of this Agreement, and the use of Mobile My-Cast by any person using a PIN assigned to you or one of your employees.
Insurance
You agree that you will not pursue any claims against DCI for any liability DCI may have under or relating to this Agreement until you first make claims against your insurance provider(s) and such insurance provider(s) finally resolve(s) such claims. You waive your right of recovery against DCI (and waive the subrogation right of your insurance provider(s)) to the extent such claims are covered by your insurance.
Applicable Law and Dispute Resolution
Use of Mobile My-Cast, and this Agreement, shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws of the United States of America and the State of Minnesota, without giving effect to any principles of conflict of laws. Any claim or dispute between DCI and you, or any other user of Mobile My-Cast, howsoever arising out of or relating to this Agreement will be submitted to binding arbitration in Hennepin County, Minnesota under the then-current rules of the American Arbitration Association; provided, however, that nothing in this Agreement shall prevent DCI from resorting to judicial proceedings if any claim or dispute involves intellectual property rights or if interim relief from a court is necessary to prevent serious and irreparable injury to DCI. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement or any activity undertaken in connection with this Agreement.
General
Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect.
DCI may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity. You may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of DCI. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
The failure by either you or DCI at any time to enforce any of the provisions of this Agreement or any right or remedy shall not constitute a waiver of such provision, right or remedy or in any way affect the validity of this Agreement. The waiver of any default by either you or DCI shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
This Agreement (which includes these Terms and Conditions and the specific terms of your Mobile My-Cast subscription provided to you by DCI) sets forth the entire agreement and understanding between DCI and you regarding the subject matter hereof and supersedes any oral or written prior representations, negotiations, discussions or agreements regarding the same subject matter. You may not modify or amend this Agreement except by the express, written agreement of DCI.Last Updated Tuesday, February 17, 2004