LAST UPDATED ON JUNE 15, 2011
1. Welcome to Postano
1.1 Terms of Service. The following TigerLogic Postano Terms of Service (these “TOS“) are between you and, if applicable, the company or other legal entity you represent (collectively, “you“) and TigerLogic Corporation (“TigerLogic,” “we,” or “us“) and constitute a legal agreement governing your access to and use of the Postano website www.postano.com and each of its subdomains (collectively, the “Sites“), as well as the Postano platform and related software and services (collectively, the “Services“, and together with the Sites, the “Sites and Services“).
1.2 Postanos. The Sites and Services provide functionality that allows you to aggregate and display content from different sources within one or more “Postano” modules. Each module will be hosted by us and may either be embedded in a website page hosted by us on a subdomain of postano.com (a “Public Postano“) or embedded in a page of a separate website owned and operated by you (a “White Label Postano“). All Public Postanos and White Label Postanos under Your Account (as defined below) collectively are “Your Postanos“, and the sites in which Your Postanos are embedded are “Your Sites“.
1.3 Acceptance of Terms. YOU MUST AGREE TO THESE TOS BEFORE YOU MAY USE THE SITES AND SERVICES. YOU WILL BE DEEMED TO HAVE ACCEPTED THESE TOS BY: (A) ACTUALLY USING THE SITES AND SERVICES OR (B) ELECTRONICALLY CONFIRMING YOUR ACCEPTANCE WHEN PROMPTED ONLINE. IF THESE TOS ARE BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THESE TOS ON BEHALF OF THAT ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT ENTITY TO THESE TOS. IF YOU DO NOT HAVE SUCH AUTHORITY, IF YOU ARE NOT LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE A MINOR OR INCAPACITATED), OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THESE TOS, YOU ARE NOT PERMITTED TO USE THE SITES AND SERVICES.
2. Use of the Sites and Services
2.1 Limited License for Use of the Sites and Services. We grant you a limited, revocable, non-transferable, non-sublicensable, and non-exclusive license to (a) access and use the Sites for your own personal, non-commercial purposes, conditioned upon your compliance with these TOS, and (b) access and use the Services for purposes of aggregating and displaying content from third party sources on Your Postanos, conditioned upon your compliance with these TOS, including without limitation Section 6 below, and payment of all applicable Fees. You agree not to reproduce, distribute, display, perform, sell, use, or otherwise exploit any portion of the Sites and Services for commercial purposes, except for use of Your Postanos and Your Sites in compliance with these TOS.
2.2 U.S. Government Restricted Rights. If the Sites and Services are used or accessed by or on behalf of the United States Government, such use or access is subject to this paragraph. Each of the Sites and Services and related documents is deemed to be a “Commercial item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable, and any other applicable civilian and military Federal acquisition regulations. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Sites and Services are being licensed to U.S. Government end users (i) only as Commercial items, and (ii) with only those rights as are granted to all other end users pursuant to these TOS.
2.3 International Access. If you access and use the Sites and Services outside the United States, you are responsible for complying with all applicable local, state, federal, national, provincial, foreign, and international statutes, treaties, regulations, rules, orders, and other laws, including without limitation all export and re-export laws.
2.4 Responsibilities and Restrictions. You agree that:
(a) You are responsible for obtaining and maintaining all equipment and services needed to access and use any of the Sites and Services and for paying all related charges;
(b) You will use Your Postanos, Your Sites, and the Sites and Services only (i) in a lawful manner; (ii) in accordance with the these TOS; (iii) in accordance with any agreement between you and any other person or entity (including any restrictions or requirements placed on you by any person or entity that hosts Your Sites); and (iv) within the express scope of the license granted in Section 2.1 above;
(c) You will not use Your Postanos, Your Sites, or the Sites and Services to (i) transmit or display any material that is abusive, harassing, tortious, defamatory, obscene, sexually explicit, invasive of another’s privacy, hateful, or otherwise objectionable or that promotes violence or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (ii) transmit or display any unsolicited or unauthorized advertising or promotional materials; or (iii) impersonate any person or entity or misrepresent your affiliation with a person or entity;
(d) You will not include on Your Postanos or Your Sites or use the Sites and Services in connection with any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device;
(e) You will not (i) interfere or attempt to interfere in any manner with the functionality or proper working of the Sites and Services; or (ii) remove, obscure, or alter any notice, including any notice of intellectual property or proprietary right, appearing on or contained within the Sites and Services;
(f) You will not, and will not attempt to, (i) modify, alter, tamper with, repair, or otherwise create derivative works of the Services; or (ii) reverse engineer, disassemble, decompile, or otherwise derive any source code of or relating to the Services;
(g) You will not without our prior written consent advertise, issue any press release, or make any other formal public communication with respect to your use of the Sites and Services (other than advertising or promoting Your Postanos and Your Sites without reference to any of the TigerLogic Parties or any of the Sites and Services);
(h) The terms governing the use of Your Sites will be consistent with these TOS; and
(i) You will promptly provide us with all information and documentation that we request to verify your compliance with these TOS. In addition, you hereby consent to us monitoring, crawling, or otherwise investigating Your Postanos and Your Sites and your use of them to verify compliance with these TOS.
2.5 No Children. The Sites and Services are not intended for use by children. If you are under the age of thirteen (13), you may not use the Sites and Services.
3. Third Party Services
3.1 Third Party Services. The Sites and Services are integrated or interoperate with third party products and services, which may include the social-networking services available at www.facebook.com and www.twitter.com, the video-sharing services available at www.youtube.com, the news services available at news.google.com, and the websites from which Your Postanos may derive content (collectively, “Your Sources“), other websites and services from which the Sites derive content, other websites and services through which you may log into Your Account (as defined below), and other websites and services (all such services and websites, collectively, “Third Party Services“). We are not affiliated with or endorsed by the providers of Third Party Services. Your use of Third Party Services through the Sites and Services is subject to the terms and conditions, privacy policies, and other policies and agreements applicable to such Third Party Services.
3.2 Disclaimers regarding Third Party Services. We have no control over any aspect of the Third Party Services, any modification, suspension, or termination of Third Party Services, or the use of any information shared with any Third Party Service. You use or rely on Third Party Services at your own risk. UNDER NO CIRCUMSTANCES WILL TIGERLOGIC, OUR PARENTS, SUBSIDIARIES, OR AFFILIATES, OUR OR THEIR RESPECTIVE LICENSORS, SUPPLIERS, DISTRIBUTORS, OR CUSTOMERS, OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, OR AGENTS (COLLECTIVELY, THE “TIGERLOGIC PARTIES“) HAVE ANY LIABILITY FOR OR IN CONNECTION WITH ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USE OF, OR RELIANCE ON, ANY THIRD PARTY SERVICES. WITHOUT LIMITING THE GENERALITY OF THE ABOVE, THE TIGERLOGIC PARTIES DO NOT GUARANTEE, AND DISCLAIM ALL RESPONSIBILITY FOR, THE AVAILABILITY, PERFORMANCE, QUALITY, FEATURES, CONTENT, OR USEFULNESS OF ANY THIRD PARTY SERVICES.
4.1 Types of Content. Content available through the Sites and Services includes content provided by us (“Our Content“) and content provided by users of the Sites and Services (including you), users of Third Party Services, news and media sites, and other persons and entities other than us (collectively, “Third Party Content“).
4.2 Our Content. As between you and us, we own all Our Content, including but not limited to our arrangement of Third Party Content, but excluding Third Party Content itself. Our Content is protected under United States and international copyright laws and is subject to other intellectual property and proprietary rights and laws. No use of Our Content is authorized other than as expressly provided in these TOS. You agree to abide by all copyright notices, information, or restrictions contained in or attached to any of Our Content and to retain all trademark, copyright, and other proprietary notices on copies of Our Content in the same form and manner as on the original.
4.3 Third Party Content. We do not control any Third Party Content displayed on or through the Sites and Services and, as such, we do not make any promise, warranty, or other assurance as to the accuracy, integrity, or quality of such Third Party Content. You understand that by using our Sites and Services, you may be exposed to Third Party Content that is offensive, indecent, or objectionable. Any opinions, advice, statements, views, positions, services, offers, or other Third Party Content expressed or made available on our Sites and Services are solely those of the respective authors or distributors, and do not necessarily reflect our opinions, views, or position. You use or rely on Third Party Content at your own risk. UNDER NO CIRCUMSTANCES WILL ANY OF THE TIGERLOGIC PARTIES HAVE ANY LIABILITY FOR OR IN CONNECTION WITH ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USE OF, OR RELIANCE ON, ANY THIRD PARTY CONTENT. WITHOUT LIMITING THE GENERALITY OF THE ABOVE, THE TIGERLOGIC PARTIES DO NOT GUARANTEE, AND DISCLAIM ALL RESPONSIBILITY FOR, THE VALIDITY, ACCURACY, TRUTHFULNESS, COMPLETENESS, RELIABILITY, AVAILABILITY, OR USEFULNESS OF ANY THIRD PARTY CONTENT AND ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN ANY THIRD PARTY CONTENT, OR FOR HYPERLINKS EMBEDDED IN ANY THIRD PARTY CONTENT.
4.4 License to Your Content. Third Party Content includes Your Postanos (excluding Our Content) and text, images, or other content that you or others submit or upload to, or otherwise authorize or make available for use on or through, Your Postanos and the Sites and Services (“Your Content“). As between us, you own all rights to Your Content. However, you hereby grant to us and our parents, subsidiaries, and affiliates, and our and their successors and assigns, an irrevocable, perpetual, non-exclusive, fully-paid, worldwide, transferable, sublicensable (through multiple tiers) license, without additional compensation to you or any third party, to host, store, cache, index, reproduce, reformat, publish, distribute, transmit, display or perform (publicly or otherwise), and otherwise use Your Content (in whole or in part) in any format or medium, whether now known or hereafter developed, for the purpose of providing the Sites and Services. You also hereby grant to each user of the Sites and Services an irrevocable, perpetual, non-exclusive, fully-paid, worldwide, transferable, sublicensable (through multiple tiers) license, without additional compensation to you or any third party, to access Your Content and Your Postanos, and to share, rate, review, comment on, flag, and use any of Your Content (in whole or in part) as permitted through the functionality of the Sites and Services and under these TOS. You understand that if you include any personal information in Your Content, that information may be visible to users of the Sites and Services or Third Party Services, and you hereby authorize us to publish such personal information. To the extent any right you may have in or relating to any of Your Content cannot be licensed to us as provided in this Section 4.4 under any applicable law or legal theory, including without limitation any rights of publicity or privacy or any “moral” rights, you hereby irrevocably waive any and all such rights.
4.5 Treatment of Your Content. We may, but are not obligated to, monitor Your Postanos and Your Sites, and you agree that you are solely responsible for all of Your Content. We are not required to host, display, or distribute any of Your Content, and may remove at any time or refuse any of Your Content. You understand that we have no obligation to store, archive, or backup any of Your Content, and it is your sole responsibility to retain copies of Your Content for your own future reference and use. We are not responsible for any loss, theft, or damage of any kind to any of Your Content. In addition, we have no control over, and will have no liability resulting from, the use (including without limitation re-publication) or misuse by any third party of any personal information or other material contained in Your Content voluntarily made public through any of our Sites and Services.
4.6 Representations and Warranties regarding Your Content. You represent and warrant that: (i) you own all intellectual property and all other rights in Your Content, Your Postanos, and Your Sites or, alternatively, you have acquired all necessary rights in Your Content, Your Postanos, and Your Sites to enable you to grant the rights in Your Content described in these TOS; (ii) Your Content, Your Postanos, and Your Sites do not infringe, violate, or misappropriate the intellectual property, privacy, publicity, or any other legal or moral rights of any third party; (iii) Your Content, Your Postanos, and Your Sites do not violate any law; and (iv) you will at all times comply with the restrictions in Sections 2.4(c) and (d) above with respect to Your Content, Your Postanos, and Your Sites.
5. Proprietary Rights
5.1 Ownership. You acknowledge and agree that TigerLogic and/or its licensors own all legal right, title, and interest in and to the Sites and Services (including without limitation all design and functional aspects of the Sites, other than Third Party Content and Third Party Services). You agree not to reproduce, sell, rent, or barter the Sites and Services or any part of them (other than Your Content) for any purpose. We reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of these TOS or otherwise, acquire any ownership interest or rights in or to the Sites and Services or any copies of them, or any other intellectual property or technology that we provide or use in connection with the Sites and Services.
5.2 Logos and Marks. TigerLogic, the TigerLogic logo, Postano, the Postano logo and certain other names, graphics and logos used in connection with the Sites and Services are trademarks (registered or otherwise), trade names, service marks, and logos (each, a “Mark“) of us, our parents, subsidiaries, affiliates, licensors, or other entities in the United States and/or other countries. You are not authorized to use any of the Marks without our prior written consent, or that of such other person or entity who may own such Mark. Ownership of the Marks and the goodwill associated therewith remains with us or those other persons or entities. You will not state or imply (i) that you have any partnership or affiliation with TigerLogic or (ii) that TigerLogic supports or endorses you, Your Postanos, or Your Sites.
6. Special Provisions Regarding Your Postanos
6.1 Postano Account. To use the Services you must first establish a Postano account (“Your Account“) with a username and password. TigerLogic may allow you to establish Your Account directly with us, or we may allow you to establish Your Account through a Third Party Service (such as by using your Facebook or Twitter account username and password in accordance with authentication programs made available by those Third Party Services). To allow the Sites and Services to obtain content from Your Sources you must either provide to us directly or allow us to access (such as through authorization programs made available by Your Sources) certain information to be associated with Your Account, such as contact information, company information, data feed access information with respect Your Sources, and account information with respect to your accounts held with Third Party Services (collectively, “Your Account Information“). By providing to us or giving us access to Your Account Information, you authorize us to use Your Account Information to access and use content and information related to such Third Party Service accounts (including without limitation your profile information, information regarding your friends and followers, privacy settings, posts, photographs, images, and videos, and metadata regarding any of the above) for use by the Services in connection with Your Postanos and in accordance with any applicable policies of the relevant Third Party Services. By establishing Your Account, you represent and warrant that (a) the information you provide is accurate and complete in all respects, (b) you are the owner and operator of, or are otherwise authorized to access and use for the purposes of these TOS, the websites you have included in Your Account Information as RSS or MRSS (or similar technology) feed sources for Your Postanos, (c) you are the account holder of each account with Third Party Services included in Your Account Information, (d) you have the authority to allow us to access and use Your Sources and all Third Party Content contained in Your Sources for use on and in connection with Your Postanos as contemplated by these TOS, and (e) each URL that you use or select for your Public Postano does not infringe, violate, or misappropriate any intellectual property, publicity, or other legal or moral rights of any person or entity. You will promptly notify TigerLogic of any change in Your Account Information and will ensure that Your Account Information is at all times complete, accurate, and up-to-date. You are responsible for maintaining the confidentiality of your password, and you are solely responsible for all activities that occur under Your Account. You agree not to sell, transfer, or assign Your Account or any associated rights. You agree to immediately notify us of any unauthorized use of Your Account or any other breach of security related to any of the Sites and Services. We reserve the right to require you to alter your password if we believe that Your Account is no longer secure. YOU AGREE THAT THE TIGERLOGIC PARTIES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO ADEQUATELY SAFEGUARD YOUR PASSWORD.
6.2 Public Postano URLs. TigerLogic may allow you to select a URL for a Public Postano at the domain “postano.com”, for example “yourtopic.postano.com”. We reserve the right to accept or reject your selected URL in our sole and absolute discretion for any reason whatsoever. Without limitation, we may reject a URL that is already being used by another Postano user, that contains offensive language, that you do not have the legitimate right to use, or that is associated with illegal activity. Even after we have assigned a URL to a Public Postano, we reserve the right to do any or all of the following at any time in our sole and absolute discretion for any reason whatsoever: reclaim that URL, reassign that URL to another user, or change the URL assigned to any of your Public Postanos. For example, we may reclaim and reassign a URL of a Public Postano if the URL you select contains the name of, or otherwise refers to, an individual, company, or product, and that individual or company, or the producer or distributor of that product, requests that we reclaim that URL.
6.3 Price and Payment Terms
(a) From time to time we may offer use of the Services free of charge for a certain period of time (each a “Trial Period“), and we may impose additional terms, restrictions, or limitations on the use of the Services during such Trial Period. To take advantage of any Trial Period pricing, you must comply with all of the terms, restrictions, and limitations applicable to the Trial Period. We may request payment information from you so that we can charge you appropriate Fees (as defined below) once the Trial Period has ended. You may only have the benefit of one Trial Period. You may not sign-up for multiple accounts in order to obtain the benefit of more than one Trial Period, nor may you establish or use any account to avoid the terms, restrictions, or limitations applicable to any Trial Period.
(b) In consideration for access to the Sites and Services, after the Trial Period (if any), you will pay to TigerLogic all applicable fees for the use of the Services as set forth in the Postano Pricing Plan http://www.postano.com/pricing/ (the “Fees”). The Postano Pricing Plan may state that certain types or levels of usage may not require any Fees. Nevertheless, we may request payment information from you so that we can charge you appropriate Fees in the event your usage exceeds the free level or becomes a type requiring payment of a fee. Fees are subject to change in accordance with Section 13 below. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and any fees paid are non-refundable. For purposes of determining Fees payable under these TOS, you authorize TigerLogic to access information about you, Your Postanos, Your Sites, and your Third Party Services accounts through the means described in Section 2.4(i) above, from Third Party Service providers, and through other legal means. You represent and warrant that any information provided by you for purposes determining Fees payable under these TOS is complete, accurate, and up-to-date. If we have reason to suspect that such information is not complete, accurate, and up-to-date, then we will have the right to (a) charge Fees for your use of the Services based on what we reasonably believe to be the complete, accurate, and up-to-date information about you, Your Postanos, Your Sites, and your Third Party Services accounts (which may differ from the information provided by you) and (b) terminate your access to the Sites and Services in accordance with Section 12 below and take any of the other actions described in that section. Changes in the information on which the Fees are based shall be reflected in Fees for the pay period immediately following such change.
(c) TigerLogic may accept payment through one or more payment service providers (such as PayPal or Chargify) or by credit or debit card, depending on our payment policies in place from time to time. If you pay through a payment service provider, the user agreement for such payment service governs your use of such payment service. If you pay by credit card or debit card, your card issuer agreement governs your use of your card. If we do not receive payment through the payment service provider or card provider, as applicable, you agree to pay all amounts due upon demand by us or our agents. You will provide us with your valid and updated payment service account or credit or debit card information, as applicable, and you authorize us to charge such payment service account or credit or debit card account for all Fees. You are responsible for maintaining complete and accurate billing and contact information.
(d) If any amount owing by you is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts you have authorized us to charge to your credit or debit card), we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations, so that all such obligations become immediately due and payable, and suspend our services to you until such amounts are paid in full.
(e) Unless otherwise stated, our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes“). You are responsible for paying all Taxes associated with your purchases in connection with the Sites and Services. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be charged to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
(f) Under the Postano Pricing Plan, you may have the option to choose from among one or more subscription pricing arrangements (a “Subscription”). If you choose a Subscription, the Subscription may renew automatically at the then-current price for the Subscription at the end of each Subscription period unless you cancel your Subscription prior to the next renewal date. By choosing one of these arrangements, you consent to this automatic renewal feature. You may cancel your Subscription at any time. If you wish to cancel your Subscription, follow the instructions for cancelling Subscriptions found on http://www.postano.com/cancel.php. If you signed up for your Subscription during a Trial Period and do not wish to be charged for your Subscription, you should cancel your Subscription prior to the end of the Trial Period.
6.4 Publicity. During the term of this Agreement, TigerLogic may, unless you notify us otherwise (which may be by deselecting or “opting out” of such permission when you establish Your Account): (a) use your name and logo in identifying you as a client of TigerLogic’s in connection with Postano and (b) on the Postano home page and other TigerLogic web pages refer to and link to each of Your Sites.
7. Infringement Claims.
We respect the intellectual property rights of others. Accordingly, we have a policy of removing Third Party Content that violates copyright, trademark, or other intellectual property law, suspending access to all or any portion of the Sites and Services to any user who uses the Sites and Services in violation of any such law, and/or terminating in appropriate circumstances the account of any user who uses the Sites and Services in violation of any such law. Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright, trademark, or other intellectual property right is being infringed by a user of the Sites and Services, please provide written notice to the following agent for notice of claims of infringement.
Attn: CFO TigerLogic Corporation.
25A Technology Drive, Suite 100
Irvine, California 92618
Your written notice must: (i) contain your physical or electronic signature; (ii) identify the copyrighted work, trademark, or other intellectual property alleged to have been infringed; (iii) identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material; (iv) contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address); (v) contain a statement that you have a good faith belief that use of the copyrighted material, trademark, or other intellectual property is not authorized by the owner, the owner’s agent, or the law; (vi) contain a statement that the information in the written notice is accurate; and (vii) contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright, trademark, or other intellectual property owner. Please do not send notices or inquiries unrelated to alleged intellectual property infringement to our designated agent.
8. Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITES AND SERVICES IS AT YOUR SOLE RISK AND THE SITES AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE TIGERLOGIC PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE TIGERLOGIC PARTIES MAKE NO WARRANTY THAT (I) THE SITES AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SITES AND SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SITES AND SERVICES WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE USED AS PART OF THE SITES AND SERVICES WILL BE CORRECTED. YOU FURTHER ACKNOWLEDGE THAT THE SITES AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SITES AND SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TIGERLOGIC OR THROUGH OR FROM THE SITES AND SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS. THE TIGERLOGIC PARTIES DISCLAIM ALL EQUITABLE INDEMNITIES.
9. Limitation of Liability.
YOU UNDERSTAND AND AGREE THAT THE TIGERLOGIC PARTIES 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, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF TIGERLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SITES AND SERVICES; (II) ANY CHANGES MADE TO THE SITES AND SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ACCESSIBILITY OF THE SITES OR ANY PART OF EITHER OF THEM; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SITES AND SERVICES; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITES; AND (VI) ANY OTHER MATTER RELATING TO THE SITES AND SERVICES. SHOULD ANY TIGERLOGIC PARTIES BE FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY NOTWITHSTANDING THE FOREGOING, THE AGGREGATE AMOUNT OF SUCH LIABILITY WILL NOT EXCEED THE GREATER OF ONE HUNDRED UNITED STATES DOLLARS ($100.00) AND ALL FEES PAID BY YOU UNDER THESE TOS IN THE PRECEDING TWELVE MONTHS.
10. Exclusions and Limitations.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of liability of the TigerLogic Parties will be the minimum permitted under such applicable law.
You agree to indemnify, defend, and hold harmless the TigerLogic Parties from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ and experts’ fees) that such parties may incur as a result of or arising from: (a) any of Your Content; (b) your (or anyone using Your Account’s) use of the Sites and Services; (c) Your Postanos or Your Sites, (d) the URL of any of your Public Postanos or Your Sites, (e) any violation by you (or by anyone using Your Account) of these TOS; (f) usage of Your Account Information or your Third Party Services accounts (whether or not such usage is expressly authorized by you); or (g) your violation of any rights of another. The TigerLogic Parties reserve the right, at our own expense, to assume the exclusive defense, settlement, and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense and settlement of such claim. The obligations in this Section shall survive the termination or expiration of these TOS and/or your use of the Sites and Services.
TigerLogic may at any time, under any circumstances, and without prior notice, immediately terminate or suspend Your Account, terminate the rights granted by these TOS, reclaim usernames, change or reclaim the URLs of any Public Postano, remove or suspend access to all or a portion of any of Your Postanos, and remove or suspend your access to all or a portion of the Sites and Services at its sole discretion. YOU AGREE THAT THE TIGERLOGIC PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR TERMINATING THE RIGHTS GRANTED BY THESE TOS, REMOVING OR SUSPENDING ACCESS TO YOUR POSTANOS, SUSPENDING OR TERMINATING YOUR ACCOUNT, OR SUSPENDING OR TERMINATING YOUR ACCESS TO THE SITES AND SERVICES. You may discontinue your participation in and access to the Sites and Services at any time. The terms of Sections 2.2 through 2.7, 3, 4, 5, 6.1, 6.3, and 7 through 18 of these TOS, as well as any other provisions that by their nature or terms should survive, will remain in full force and effect notwithstanding any termination of your use of any of the Sites and Services or of the licenses granted by these TOS.
13. Modifications to Terms.
TigerLogic may update or change any of the terms and conditions contained in these TOS at any time and in our sole discretion, by posting on http://www.postano.com/terms-of-service/ or emailing to you at the email address included in Your Account Information a change notice or a revised TOS. Modifications may include, for example, changes to usage requirements and to Fees. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR USE OF THE SITES AND SERVICES. YOUR CONTINUED USE OF THE SITES AND SERVICES FOLLOWING OUR POSTING OR EMAILING OF A CHANGE NOTICE OR REVISED TOS AS PROVIDED IN THIS SECTION WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
14. Modifications to Our Services.
We reserve the right to modify or discontinue all or any part of the Sites and Services with or without notice to you. YOU AGREE THAT THE TIGERLOGIC PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD WE EXERCISE OUR RIGHT TO MODIFY OR DISCONTINUE ALL OR ANY PART OF THE SITES AND SERVICES.
15. California Users.
Under California Civil Code Section 1789.3, California users may be entitled to the following consumer rights notice: If you have a question or comment about the Sites and Services, you may send us an email at email@example.com. You also may contact us by writing to: TigerLogic Corporation, Attn: Postano Support, 25A Technology Dr. Suite 100, Irvine, California 92618; or by calling us at 949-442-4400. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, California 95834 or by telephone at (916) 445-1254 or (800) 952-5210.
16. Electronic Communications Notice.
You agree to send any notices that are required or permitted to be given by these TOS to us only in the manner specified for such purposes on our Sites. When you use the Sites and Services or send emails to us, you are communicating with us electronically. You consent to receiving communications from us electronically. We may communicate with you by email or posting notices on the applicable page of http://www.postano.com/terms-of-service/. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. In order to retain copies of any such communications, you must have a printer or data storage device. If you have a printer, you may print paper copies of any such communications for your own use. In addition, you hereby consent to us sending you email or other communications related to the Sites and Services and other TigerLogic products and services from time to time.
Any dispute relating in any way to the Sites and Services in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 will be adjudicated in any state or federal court in Orange County, California, and you hereby consent to exclusive jurisdiction and venue in those courts. The laws of the State of California, without regard to principles of conflicts of laws, will govern these TOS and any dispute of any sort that might arise between you and us relating to the Sites and Services. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to these TOS. Notwithstanding anything to the contrary in these TOS, either party may seek preliminary injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights.