Database Pros, LLC
Thank you for selecting Database Pros, LLC d/b/a DB Pros, LLC (“DB Pros”) to address your software and database creation needs. This user agreement (“User Agreement”) shall constitute a legal agreement between the user (“User”) and DB Pros.
By clicking the checkbox indicating User’s agreement to the User Agreement, purchasing Datachips (as defined below), and/or submitting an online query for the How-to Help DeskSM (as defined below), User indicates that he has read, understood and agrees to be bound by the terms of this User Agreement. By clicking the checkbox, User stipulates that sufficient consideration exists to create an enforceable agreement and that it is therefore binding upon him. Further, by clicking the checkbox, User makes the material representation upon which he wishes DB Pros to rely: (i) that User is at least eighteen (18) years of age; (ii) that if he is accessing the Website, conducting a transaction contemplated by this User Agreement or utilizing any of the services discussed herein, on behalf of a corporate entity that he has all requisite authority to bind the organization to the terms hereof; and (iii) that User will adhere to the terms of this User Agreement in connection with User’s use of the services.
If User does not agree to the terms of this User Agreement, in toto, User’s sole and exclusive remedy is to not click the checkbox and immediately discontinue any and all use of DB Pros’ services.
A User wishing to utilize services offered by the Company through its website, located at www.dbprosconsulting.com (the “Website”), such as the purchase of DatachipsTM/Blocks of Time and the How-to Help DeskSM will need to first register with the Website providing the Company with information about the User and creating an account for his use of the Website, whereby he becomes a registered user.
DatachipsTM/Blocks of Time
Users may purchase DatachipsTM/Blocks of Time through the Website, which User acknowledges and agrees are limited in use and applicability to the Website and are of no consequence or value outside of the realm of the Website. DatachipsTM/Blocks of Time shall be considered to be products of the Company which are being sold to the User and in exchange for payment. DatachipsTM/Blocks of Time represent a currency that can be utilized by Users to “pay” for certain of the Company’s services. Prevailing prices for the DatachipsTM/Blocks of Time shall be as listed on the Website at the time of purchase. Users acknowledge and agree that the prices may change without notice and in Company’s sole discretion. Moreover, User acknowledges and agrees that the Company shall have the absolute right to manage, regulate, control, modify and/or eliminate DatachipsTM/Blocks of Time as it determines in its sole discretion for any or no reason, in general or in any specific case, without notice to the User. The Company shall have no liability to any User based on its exercising of that right.
DatachipsTM/Blocks of Time may be used to obtain certain of the Company’s services, including the How-to Help DeskSM (as defined below) and other of the Company’s Customer Relationship Management services. DatachipsTM/Blocks of Time may be utilized in connection with eligible services, as determined by the Company in its sole discretion that are charged to a customer based on time. In that regard, DatachipsTM/Blocks of Time are currently calculated as purchasing up to fifteen minutes (0:15) of time for those eligible services. The time to DatachipTM conversion may be modified by the Company in its sole discretion. Moreover, the number of total DatachipsTM/Blocks of Time needed in order to purchase specific services or view specific content may vary.
User acknowledges and agrees that at no time shall he: (1) obtain DatachipsTM/Blocks of Time for which he did not submit proper consideration; (2) directly or indirectly, use or enable machines, scripts or automated services to, accumulate any financial benefits from the DatachipsTM/Blocks of Time program or from the Website; or (3) obtain any personal information about the Website, the Company or other Users.
User may purchase DatachipsTM/Blocks of Time through the Website, which shall be credited to an account created in connection with the User’s registration on the website (the “User Account”), within one hour (1:00). Thereafter, User may commence his use of the eligible services. The time spent by the Company in providing those services shall be debited against the User’s User Account. User may purchase DatachipsTM/Blocks of Time in any quantity as he may elect. DatachipsTM/Blocks of Time may continue to be utilized by a User even if the price to purchase DatachipsTM/Blocks of Time increases from that which the User paid. Currently, DatachipsTM/Blocks of Time do not expire, but Company may elect in its sole discretion to set expiration dates for the DatachipsTM/Blocks of Time. Moreover, User acknowledges and agrees that the Company may cease operation of the Website, the eligible services, terminate the DatachipsTM/Blocks of Time program or terminate the User’s access to the Website or his User Account in its sole discretion. In the event that User has a DatachipsTM/Blocks of Time balance at the time of any such termination, regardless of the reason underlying that termination, User shall be deemed to have waived any right to the DatachipsTM/Blocks of Time or their cash value, unless otherwise set forth herein.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, ALL SALE TRANSACTIONS ARE FINAL. User acknowledges and agrees that he has limited rights to receive any refund for the Datachips TM that he purchases. The sole right of refund shall be if the User makes a written request to the Company for a refund within thirty (30) days of the purchase. Such notice must include User’s name and contact information, as well as a written explanation as to why he wishes to receive a refund. Thereafter, there shall be no right of refund, for any reason. User acknowledges that there is not a minimum number of DatachipsTM/Blocks of Time that he is required to purchase. Accordingly, if he does purchase a quantity of DatachipsTM/Blocks of Time, he is doing so at his own risk.
Further, the limited refund provided shall apply only to the unused portion of the DatachipsTM/Blocks of Time purchased at that time. Company, in its sole discretion, may elect whether to credit the refund amount back to a credit card with which the User originally purchased the DatachipsTM/Blocks of Time, or provide payment to the User in an alternate manner. Moreover, the amount of the refund shall be calculated based upon the rate paid by the User for the returned DatachipsTM/Blocks of Time, regardless of the current value of them. For example, though without limitation, assume that the User purchased the ten (10) DatachipsTM/Blocks of Time at a rate of $150.00 per DatachipTM. Assume further that ten days thereafter, the price of the DatachipsTM/Blocks of Time increased to $200.00 for each DatachipTM. If the User requests a refund for the five (5) unused DatachipsTM/Blocks of Time within thirty (30) days of the original purchase, the refund shall be calculated based upon the $150.00 rate and not the now current value. Moreover, if the User received a discount on his purchase of the DatachipsTM/Blocks of Time, the price to be refunded shall also reflect that discount, in that the User shall only be reimbursed at the rate that he paid for the DatachipsTM/Blocks of Time.
Upon use of the eligible services, User’s User Account will be automatically debited and credited to reflect the remaining balance of DatachipsTM/Blocks of Time, if any. User acknowledges and agrees that his use of any of Company’s services may be made contingent upon the User’s replenishment of DatachipsTM/Blocks of Time to his User Account.
DatachipsTM/Blocks of Time are non-transferable and shall be void if transferred. In the event that User engages in a prohibited transfer of DatachipsTM/Blocks of Time, the entire DatachipsTM/Blocks of Time balance within his User Account shall be void and rescinded. Moreover, a User’s User Account and his DatachipsTM/Blocks of Time are not transferable upon death or as part of a domestic relations matter or otherwise by operation of law. DatachipsTM/Blocks of Time shall not be sold or bartered.
Other than the limited right to refund set forth above, User acknowledges and agrees that DatachipsTM/Blocks of Time may be not be redeemed for US Dollars or any other form of money (“Money”). In the event that he never uses his DatachipsTM/Blocks of Time, User acknowledges and agrees that he will not be able to obtain Money for the DatachipsTM/Blocks of Time and they will therefore be of no real world value.
User acknowledges and agrees that payment to purchase DatachipsTM/Blocks of Time needs to be made through Company’s Website utilizing a valid credit card and that his User Account will not reflect the credit of the DatachipsTM/Blocks of Time unless and until the payment is properly and fully made. Furthermore, User acknowledges, covenants and agrees that he will not make any chargebacks or otherwise request from his credit card, debit card or other account provider, reimbursement of any fees paid to the Company.
Each User’s DatachipsTM/Blocks of Time balance shall be reflected in his User Account. It shall be the User’s responsibility to ensure that balance stated is accurate and that the deductions made to the User Account based upon his use of the Company’s services have been properly calculated and that his account balance is accurate. User acknowledges and agrees that he is solely responsible for any and all use of his User Account, whether he authorized it or not. In the event that the User Account is inaccurate, he shall provide written notice to the Company of the same, accompanied by supporting documentation as to why the balance is inaccurate and explaining why an adjustment should be made. Such notice shall be sent no later than fifteen (15) days after the User Account is modified to reflect the balance or transaction at-issue. In the event that timely notice is not made by the User, the User shall forever waive any right or claim to assert such a claim. Company may evaluate such notice and elect to adjust the User Account balance in its sole discretion. In the event that a User is not satisfied with the Company’s determination in this regard, his sole remedy is to cease use of the Company’s services.
Users shall not abuse the Company, the Website or the DatachipsTM/Blocks of Time program by engaging in conduct that is detrimental to the Company, including without limitation attempting to secure DatachipsTM/Blocks of Time or spend DatachipsTM/Blocks of Time in a manner inconsistent with the law, the rules of the Website or the Company, or the intent of this Agreement. Users shall not operate multiple accounts, nor attempt to earn DatachipsTM/Blocks of Time. Users shall not participate in purchasing or redemption fraud or tamper with any User Accounts or User Account DatachipsTM/Blocks of Time balances. Furthermore, User shall not utilize the Website or any of the Company’s services to perpetuate any illegal act or otherwise improperly transfer money.
How-to Help DeskSM
The How-to Help DeskSM is a service offered by the Company to Users, in which Users can present questions relating to their business software needs. The Company identifies certain software relating to which it offers its services (the “Serviceable Software”) on the Website, but reserves the right to reject any specific question, or modify this list at any time, in its sole discretion. Moreover, this list of Serviceable Software shall not be construed to constitute a representation or statement by the Company that it has expertise as to these programs or that it or its employees are certified by any of the software programs or their manufacturers. The Company has no affiliation with the Serviceable Software products and does not in anyway represent itself to be an agent of, or otherwise endorsed by, the producers of the Serviceable Software, or their manufacturers or licensors.
The Company is simply providing services relating to User’s use of the Serviceable Software. The User must secure all rights to access and utilize the programs independently. Nothing herein, and no purchase of the Company’s services, shall entitle the User to a right to use the Serviceable Software. Further, the User acknowledges and agrees that the Company is not affiliated with, and makes no endorsement or representation relating to, the Serviceable Software. Any deficiencies or liability relating to User’s use of the Serviceable Software shall solely be the liability of the manufacturer or licensor of that program, and not the company.
All requests for How-to Help DeskSM services (each a “Query” and collectively, “Queries”) should be made through the How-to Help DeskSM online submission form, available on the Website. The Query should articulate the problem that the User seeks to have addressed; the name and contact information for the person to whom the User wishes the Company to respond; the best mode of communication for the Company to communicate with that person; and the best time for the Company to communicate with them. This shall not, in anyway, bind the Company to meet each of the requests set forth within the Query. For example, if a User requests that a call be conducted at 3:00 PM, that specific request may or may not be able to be accommodated, and the Company shall not be deemed in breach of this Agreement for failure to adhere to the parameters set forth in the Query. Those details are being provided for the Company’s convenience only.
Company will endeavor to have representatives available to address Queries from Monday through Friday, 9:00 a.m. – 9:00 p.m. Eastern Standard Time (“Normal Business Hours”). However, User acknowledges that Normal Business Hours do not include any holidays that are recognized by the Federal government and/or the Company, and that the How-to Help DeskSM services will not be available at those times or any other days or times that are outside of the Normal Business Hours.
Notwithstanding the foregoing, the User has the right to indicate in his Query that he needs his Query reviewed on a more expedited basis. On the Query, the User may indicate the status of his request as being either “normal,” “urgent,” or an “emergency.” For Queries that do not have a status designated and/or that are marked as “normal,” Company shall undertake commercially reasonable efforts to respond to it within twenty-four hours (24:00) of Company’s receipt of the Query. Company shall undertake commercially reasonable efforts to respond to the User in response to a Query that is marked as “urgent,” within two hours (2:00); and to respond to a Query marked as an emergency within one hour (1:00). Notwithstanding the foregoing, the Parties stipulate that the calculation of hours for this purpose shall only accrue during Normal Business Hours. Although Queries may be submitted outside of the Normal Business Hours, User acknowledges and agrees that the Company’s response time shall commence only within the Normal Business Hours. However, the User acknowledges such exercise of commercially reasonable efforts may nevertheless result in a response that is later than the response times set forth above. Moreover, User acknowledges and agrees that for purposes of the response-time, the Company shall be deemed to have addressed the Query by calling the User on the number indicated in the Query within that timeframe. The Company does not guarantee that the subject matter of the Query will be fully addressed or any problems solved within that timeframe. Moreover, the Company’s sole obligation shall be to reach out to the User; if the User does not answer the phone, or is otherwise available, the Company shall nevertheless be deemed to have fulfilled its obligation by its attempt to phone the User.
The How-to Help DeskSM services are charged to the User based upon the time that the Company spends in addressing the Query and communicating with the User via telephone, Skype or other modes of communication. Once that communication has ended, for whatever reason, the Company shall have no further duty to update, nor otherwise communicate with the User nor render any other services, with regard to any issue or deadline addressed in the Query or otherwise. The User acknowledges and agrees that if he has any follow up questions or other services that he wishes for the Company to perform, those must be requested through the submission of a new Query.
In the event that the User has DatachipsTM/Blocks of Time within his User Account, the Company will utilize those in connection with its response to the Query. If, upon review of the Query, the Company determines, in its sole discretion, that the User does not have enough DatachipsTM/Blocks of Time in his User Account to enable to the Company to address the Query, it may request that the User purchase additional DatachipsTM/Blocks of Time before it continues with the service. Likewise, the Company may commence communication with a User, and if, in the midst of that communication, it determines that the User does not, or will not, have enough DatachipsTM/Blocks of Time in his User Account to address the services being requested, it may request that the User purchase additional DatachipsTM/Blocks of Time before it continues with the service. The Company shall in no way be deemed in breach of this Agreement, or otherwise deemed to have failed to perform its obligations hereunder, as a result of its suspension or termination of any How-to Help DeskSM service that relates to the User’s delay or failure to add DatachipsTM/Blocks of Time to his User Account.
If the User does not have any DatachipsTM/Blocks of Time within his User Account, or if his Query reflects that his request is an “emergency,” the Company will only commence the How-to Help DeskSM services upon the User providing the Company with his credit card information. The services will then be charged at the then-current price posted for Pay As You GoSM rates. User acknowledges and agrees that he will pay more for services charged at the Pay As You GoSM rates as compared to what he would pay if he utilized the DatachipsTM/Blocks of Time. Without limitation, User acknowledges and agrees that EVEN IF he has DatachipsTM/Blocks of Time on account with the Company, any services that have been requested on an “emergency” basis will be charged at the Pay As You GoSM rates. User covenants and agrees to use a valid credit card for his Pay As You GoSM payment, and acknowledges, covenants and agrees that he will not make any chargebacks or otherwise request from his credit card, debit card or other account provider, reimbursement of any fees paid to the Company.
All use of the How-to Help DeskSM, and purchases made in connection with those services are final. Once a Query has been made, the Company shall have been deemed to have fully earned all fees associated with the Query, and the User may not cancel it. All monies paid to Company shall be deemed earned upon receipt. Cancellations, exchanges, refunds and returns are not permitted and will not be accepted for any reason whatsoever. In the event that the Company decides to deviate from this no refund policy in any once instance, shall not be construed as a waiver and should not apply more generally than as to that once instance. Company’s election in this regard shall be in its sole discretion and based upon the totality of the circumstances presented to the Company relating to the requested refund.
In order to perform some of the How-to Help DeskSM services, the Company may, in its discretion, elect to remotely access the User’s computer, associated network and servers, systems, programs and/or computer functions (collectively, the “Computer Systems”). By submitting a Query, User specifically authorizes the Company to so access his Computer Systems and covenants to fully cooperate with Company in effectuating the access. Without limitation, the User specifically permits, authorizes and provides a limited license to the Company to enter upon and access his Computer Systems. User agrees that he will not cause or permit any other remote access activity on his Computer Systems during the time that the Company has access to the Computer Systems (“Access Window”), unless requested by the Company and except as otherwise provided herein.
User acknowledges and agrees that the Company makes no representation that the remote access will be “secure.” User acknowledges and agrees that Company utilizes a third party vendor for services that allow it to remotely access the User’s Computer Systems. The Company’s services are limited to the advice provided and are separate and distinct from those provided by such a third party; Company is not providing the remote access services. Accordingly, the Company shall not be liable for any damage caused in connection with its access. Without limitation, the Company shall not be deemed to have provided any warranty, nor shall it have any resulting liability for, any act or omission relating to its access of the User’s Computer Systems, or the function, operation or suitability of same. In the event that the User or his Computer Systems house any information that need to be protected as such, he shall (a) provide Company with written notice of the same; and (b) be solely responsible for ensuring the security of that information, including, without limitation by providing the Company with instructions as to how the Company may access his Computer Systems in a secure manner that will address his security concerns (the “Access Method”). User shall provide additional and alternative Access Methods as the Company may request.
In order for the Company to perform its services, it may require User to perform any act, or refrain from acting, as requested by it. Without limitation, User shall:
- Furnish any and all equipment or software necessary or desirable for the Company to access to his Computer Systems;
- Furnish any and all information and data, including but not limited to, usernames, passwords and IP addresses requested by the Company for them to gain access to his Computer Systems and/or perform the services;
- Furnish any and all information in connection with the issues to be addressed by the services, including but not limited to, accessing, using and/or operating his Computer Systems and all components thereof. User acknowledges and agrees that the Company will rely on the information that the User provides as complete, true and accurate. Accordingly, User agrees to immediately notify the Company in writing if he knows or suspects, or receives information that leads him to suspect, that information he provided to the Company is no longer true, accurate and/or complete. In this notice, the User shall explain and identify the information that is untrue, inaccurate or incomplete, and any and all information necessary to make the information provided to the Company true, accurate and complete;
- Cause the use, function, operation and/or cease operation, use or function of any and all programs residing on his Computer Systems during the Access Window, and perform any other acts as requested by the Company;
- Restrict all remote access to his Computer Systems by any party other than the Company or his designee during any Access Window;
- Pay all costs and fees associated with obtaining any and all products and/or services requested by the Company;
- Provide written notice to the Company, contemporaneous with the execution of this Agreement, and in any event prior to the Company accessing the User’s Computer Systems, if the any aspect of his Computer Systems that may be accessed by the Company will provide access to payment applications. Moreover, in such event, User shall ensure that he provides written notice to the Company of the same, and shall provide Access Methods that utilize an authentication by a two-factor authentication mechanism, as well as otherwise fully and completely comply with Payment Card Information Data Security Standards Version 1.2.1 (July 2009), as those protocols may be updated from time to time; and
- In the event that the remote access by the Company is being utilized to provide updates to a payment application, User shall ensure that the Access Window is only available when the Company has indicated it is necessary for the downloads and shall turn off the technologies making the same remotely accessible immediately thereafter. In the event that the updates are being provided via VPN or other high-speed connection, as may be indicated from the Company from time to time, User shall ensure that he has properly configured a firewall or a personal firewall product to secure “always-on” connections.
- Execute and deliver to the Company any additional written assurances writing and instruments as may be requested by the Company for the purposes of effectuating the intent of this Agreement.
- User further acknowledges that the Company is entering into this Agreement, agreeing to provide the services and remotely access User’s Computer Systems based upon the information that he has and will be providing to them. Accordingly, User hereby make the following material representations upon which he requests the Company to reasonably rely: (a) he has the full right and authority to enter into this Agreement; (b) this Agreement does not conflict with any of his other contracts, agreements or obligations; (c) he has no other commitments that would hinder or prevent full performance of his obligations under this Agreement; (d) he has the power and authority to grant the license and remote access rights to the Company; and (e) all information provided by the User is complete, true and accurate and in no way misleading. User’s representations and obligations hereunder shall continue in perpetuity.
Pricing. All prices displayed on the Website are exclusive of tax, are quoted in U.S. Dollars, are valid and effective only in the United States and are subject to change. Any prices listed herein shall be solely for purchases made through the Website. Inadvertent errors in advertised prices are not binding on the Company and may be adjusted by the Company at any time in Company’s sole discretion.
Order Acceptance / Confirmation. User expressly acknowledges and agrees that receipt of an electronic order for DatachipsTM/Blocks of Time or a Query for the How-to Help DeskSM, or a request for any other Company-provided good or service, does not signify Company’s acceptance of an order, nor does it constitute confirmation of Company’s offer to sell to User. The Company reserves the right at any time after receipt of User’s order to accept or decline the order for any or no reason, in its sole discretion.
Termination. The Company shall have the right, in its sole discretion, to limit, suspend or terminate this User Agreement or any services that the Company is providing hereunder at any time, without notice, and for any reason or no reason. User otherwise acknowledges and agrees that this is in Company’s sole discretion and that it shall not be obligated to do so. Company reserves the right to investigate and take appropriate legal action against any violation of this User Agreement. All Users agree to cooperate in this investigation. In the event that Company limits, suspends or terminates this User Agreement or the services offered hereunder, User acknowledges and agrees that he shall not receive any refund of his DatachipsTM/Blocks of Time or any monies paid pursuant to the Pay As You GoSM program, in part or in its entirety, irrespective of when such limitation, suspension or termination occurs. The User may only terminate this User Agreement upon written notice to the Company. In no event shall User be entitled to a refund of any monies paid to the Company as a result of its election to terminate this Agreement, except as specifically provided herein as it relates to the limited right of refund for unused DatachipsTM/Blocks of Time within thirty (30) days of their purchase.
User Covenants. User makes the following covenants and agreements, but for which he acknowledges that the Company would not have entered into this Agreement; he covenants and agrees to: (i) provide certain information to the Company with regard to the mailing address, billing address and other information requested by Company in its performance of its services; (ii) accurately and fully provide any such information; and (iii) provide payment in good and sufficient funds. In the event that Company does not receive payment from any credit card company pursuant to which the User has made payment, the User shall be responsible to pay all amounts due to Company, upon Company’s demand for the same. In the event that the User fails to timely pay any amount due to Company, interest shall accrue at a rate of 18% per annum, or the highest amount allowed by law, whichever is less. Interest shall be calculated based upon the total amount that User owes to Company at that time.
Access to Materials – Limited License. The Website and other materials provided to the User and/or that are contained within the Website may contain images and contents including, without limitation, images, photographs, text, software, pictures, graphics, video clips, audio clips, digital downloads, data, messages or any and all other information controlled by the Company (collectively, “Materials”). The Materials and all components thereof, may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed without the written permission of the Company. Notwithstanding the foregoing, Company grants the User a limited, non-exclusive license to use, for his own internal business purposes, the Materials. User shall not download (other than page caching) or modify any portion of the Materials without the Company’s prior written approval, which may be unreasonably withheld. The User acknowledges and agrees that he will not copy or distribute any portion of the Materials to any other person or entity. Except as expressly provided, all rights are reserved. Company may terminate this license at any time.
Copyrights; Restrictions On Use. The Materials are copyrighted by the Company, its affiliates or its licensors under United States and international copyright laws, are subject to other intellectual property and proprietary rights and laws, and are owned by, or licensed to, Company, its affiliates or its licensors. Moreover, the Materials, as a whole, should be treated and protected as a collective work and/or compilation under US Copyright and other laws. The Materials may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale or redistributed in any way without the prior written permission of the Company and its applicable licensors. User must abide by all copyright notices, information or restrictions contained in or attached to any Materials. User agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of the Materials.
Trademarks. “DB ProsSM,” “DatachipsTM/Blocks of Time,” “How-to Help DeskSM,” “Pay As You GoSM” and variations thereof, as well as certain other of the names, logos and materials displayed in the Materials constitute trademarks, trade names, service marks or logos (“Marks”) of the Company or other related entities. User is not authorized to use any such Marks or any variations thereof. Ownership of all such Marks and the goodwill associated therewith remains with the Company or other related entities.
Third-Party Software. Use of the Website and certain of the Company’s services, including without limitation, the How-to Help DeskSM and remote access associated therewith, may require third-party components in order to work properly (“Third-Party Software”). THE INSTALLATION AND USE OF THE THIRD-PARTY SOFTWARE MAY BE GOVERNED BY ADDITIONAL LICENSE AGREEMENTS RATHER THAN THIS USER AGREEMENT. User may be required to accept those additional license agreements in order to meet the system requirements. The User acknowledges and agrees that the Company has no responsibility for the accuracy, reliability or safety of any Third-Party Software. User acknowledges and agrees that this User Agreement shall not be construed to constitute an endorsement by or association with the Company of such Third-Party Software, its content, product, advertising or other materials presented in connection therewith. User acknowledges and agrees that the Company is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused in connection with use of or reliance on any such Third-Party Software. If User utilizes any software, hardware or programs that are not specifically designated by the Company as being a Company product including, without limitation, the Third-Party Software, he does so at his own risk. The foregoing shall apply, without limitation, to the Servicable Software.
Notices. All notices or other communications to the Company, if any, that are to be given under this User Agreement must be in writing, which shall be given by delivery to the address set forth below by way of either personal delivery, two-day mail or overnight mail by a commercial carrier. Notices to the Company shall be deemed given only upon receipt. Notices to the Company may also be given by electronic mail, provided that it is followed by an exact copy by either regular mail, personal delivery or two-day mail or overnight mail by a commercial carrier to the same addresses set forth above. Such notice shall be deemed effective twenty four (24) hours after the message was sent, if no “system error” message or other notice of non-delivery is generated. Notices to the Company shall be addressed as set forth below unless it changes the address in writing by updating on the address listed on the Website; otherwise posting a notice on the Website; or otherwise providing notice to the User of the same. The address for giving notice to the Company is as follows:
Database Pros, LLC
1603 Windsor Court
Denville, NJ 07834
Notices to User shall be provided by the Company via email or any other address which the Company reasonably believes to be associated with the User. Notice shall be deemed effective upon delivery of the same by the Company. Moreover, and without limiting the foregoing, by using the Website or the Company’s services, including, without limitation purchasing a DatachipTM or submitting a Query, the User acknowledges and agrees that he is communicating with the Company electronically, and consents to receive communications from the Company electronically. Company may communicate, and provide effective notice to the User, by sending him emails or by posting notices on the Website. User acknowledges and agrees that all agreements, notices, disclosures and other communications that Company may provide to him electronically is effective; satisfies any legal requirement that such communication be in writing; and shall be deemed delivered to him.
Indemnification. The User agrees to indemnify, hold harmless and defend Company, its affiliates, partners, service providers, vendors and contractors and any members, shareholders, directors, officers, employees, attorneys, representatives or agents (collectively, “Company Parties”) of any of the foregoing with respect to any claim, demand, cause of action, debt, liability, damages, costs or expenses, including reasonable attorneys’ fees and expenses of the Company Parties’ selected attorney(s), arising from any third party claim relating to: (i) User’s infringement of any intellectual property of any person or entity, including without limitation, patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights; (ii) any failure by the User to comply with this User Agreement; (iii) the User’s use of the Company’s services, including without limitation purchase of a DatachipTM or use of the How-to Help DeskSM services; and/or (iv) any act or omission or willful misconduct on the part of the User or any person or entity affiliated with him.
Attorneys’ Fees. If the Company or any of the Company Parties undertake any action to enforce this User Agreement, such party will be entitled to recover from the User, and User hereby agrees to pay, any and all attorneys’ fees and any cost of litigation, in addition to any other relief at law or in equity to which such party may be entitled. In such event, the Company shall be entitled to recover all costs including both actual pre-judgment and post-judgment attorneys’ fees and costs, involved directly or indirectly in its enforcement efforts, whether or not it does so through institution of formal legal proceedings.
Limitation of Liability. COMPANY ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, USER’S COMPUTER SYSTEMS OR OTHER PROPERTY ON ACCOUNT OF ITS USE OF THE WEBSITE, or any of Company’s services, including without limitation How-to Help DeskSM or the purchase of DatachipsTM/Blocks of Time OR ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE WEBSITE. EXCEPT WHERE SPECIFICALLY REQUIRED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH (I) ANY USE OF THE COMPANY’S SERVICES, INCLUDING WITHOUT LIMITATION, THE HOW-TO HELP DESKTM; (II) USER’S PURCHASE OF DATACHIPSTM/BLOCKS OF TIME; (III) ANY REMOTE ACCESS ACTIVITY CONDUCTED BY THE COMPANY; (IV) OTHER USE OF THE WEBSITE, COMPANY’S SERVICES AND CONTENT FOUND THEREIN; AND/OR (IV) THE PERFORMANCE OR NON-PERFORMANCE BY COMPANY, INCLUDING, BUT NOT LIMITED TO, NON-PERFORMANCE RESULTING FROM BANKRUPTCY, REORGANIZATION, INSOLVENCY, DISSOLUTION OR LIQUIDATION, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO THE USER OR ANY OTHER PARTY.
If, notwithstanding the foregoing, the Company should be found liable for any loss or damage which arises out of or is in any way connected with any of the above described functions or uses of the Materials or Company’s Services, the Company’s liability shall in no event exceed, in the aggregate, the greater of: (a) the amount that the User has paid to the Company within the previous six (6) months; or (b) US $100.00. Some states do not allow limitation of liability, so the foregoing limitation may not apply to the User.
Disclaimer of Warranties; Limitation of Liability. User acknowledges and agrees that he has requested the Company’s services, and that the Company may remotely access his Computer Systems. This is being done at User’s own and sole risk. User understands that the services are provided without warranty of any kind. Without limiting the foregoing, the Company make no warranties or representations regarding the quality, reliability or effectiveness of the Services, and/or any outcome or result of the services. All services are “AS IS” and User acknowledges and assumes all risks related, directly or indirectly, to the performance of services or the Company’s use or access of the User’s Computer Systems. User further acknowledges that that the services, and the Company’s use or access of his Computer Systems, may cause damage or loss, including without limitation: (a) any affect on the operation and/or performance of the Computer Systems; (b) temporary or permanent loss or unavailability of information; (c) injury or damage to the User’s Computer Systems; and (d) any compromise of information or data residing in the User’s Computer Systems, including but not limited to third party data. User therefore waives any claims against the Company relating thereto. User further acknowledges and agrees that the Company’s performance of the services may cause the operation and/or performance of the User’s Computer Systems to be affected, impaired, injured, damaged and/or unusable, which may occur during and/or continue after the Access Window. Repair of any such affect, impairment, injury or damage is not included in the Company’s services to be provided hereunder and the Company make no representations or warranties that they have the means or ability to affect or assist in any such repair.
User waives any claim for damages that he may have against the Company relating to this Agreement. In the absence of intentional misconduct or negligence, User hereby waives and releases any and all claims against the Company for any act or omission directly or indirectly related to the subject matter of this Agreement. Without limitation, on behalf of himself and any of his predecessors, heirs, successors, assigns, agents and representatives hereby knowingly, completely, voluntarily, irrevocably and perpetually releases, waives, relinquishes, acquits, absolves, discharges and gives up any and all claims, rights, defenses, demands, damages, costs, judgments or liabilities, duties, debts, liens, accounts, refunds, obligations, contracts, agreements, promises, representations, actions and causes of action or other proceeding of any kind whatsoever, in law, equity, tort, contract or otherwise, whether accrued or unaccrued, known or unknown, suspected or unsuspected, which he may have against any of the Company Parties including without limitation, any acts, events or omissions related to, arising out of or in connection with the Company’s services, the use of the Access Method or the User’s Computer Systems, whether before, during or after the Access Window, and regardless of whether the Company’s acts or omissions caused, in whole or in part, any claimed loss or damage. This includes, without limitation, any claim which could be asserted now or in the future under: (a) the common law, including without limitation, all claims based on breach of contract or implied contract, breach of the covenant of good faith and fair dealing, breach of express or implied duty, violation of public policy, negligent and/or intentional infliction of emotional distress, interference in any contract, economic opportunity or prospective economic advantage, retaliation, fraud, negligent and/or intentional misrepresentation; (b) any claim of breach of contract or otherwise based upon a breach of this Agreement, or any other agreement between the Parties; (c) any of the Company’s or the User’s policies, practices, procedures, handbooks or manuals; (d) any federal and/or state statute or regulations; (e) any claim for attorney’s fees; (f) any provision of the Constitution of the United States, the State of New Jersey or any other state; and (g) any provision of any other law, common or statutory, of the United States, New Jersey or any other state. Furthermore, User irrevocably covenants to refrain from, directly or indirectly, asserting any claim or demand or commencing, instituting or causing to be commenced, any proceeding of any kind against the Company or any of the Company Parties, based upon any matter, incident or occurrence relating to the subject matter of this Agreement, including without limitation, the Company’s services, the Access Methods and/or the Company’s access of the User’s Computer Systems.
IT IS HEREBY STIPULATED BY THE PARTIES HERETO THAT TRIAL BY JURY IS HEREBY SPECIFICALLY WAIVED AS TO ALL ISSUES BETWEEN THE PARTIES HEREIN. THE STATUTE OF LIMITATIONS WITH REGARD TO ANY PROCEEDING DIRECTLY OR INDIRECTLY RELATED TO THE BREACH OF THIS AGREEMENT, OR OTHERWISE ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO ONE (1) YEAR FROM THE DATE OF OCCURRENCE OF THE BREACH, ACT OR OMISSION, EXCEPT AS TO ANY CLAIM FOR INDEMNIFICATION PERMITTED BY THIS AGREEMENT, AS TO A CLAIM BY A THIRD PARTY. The provisions of this section shall continue in perpetuity.
Notwithstanding any termination of the User’s use of the Website or any termination of a User’s User Account, User acknowledges and agrees that the representations and obligations of the User, as well as the disclaimer of warranties, limitation of liability and release of liability hereunder shall survive and continue in perpetuity.
Dispute Resolution. A User may not institute a suit at law or equity regarding any dispute, whether directly or indirectly related or collateral to this User Agreement or User of the Website or any of the Company’s services. All such claims or disputes, whether between or among the User(s) and the Company, shall be submitted to binding arbitration administered by a single arbitrator. Without limitation, any dispute over the arbitrability of a matter shall be specifically reserved for the arbitrator to exclusively hear, and shall not be submitted to the court. However, notwithstanding the foregoing, either prior to, during or after the arbitration process, either the Company or a User may institute a suit in equity for a temporary injunction (a) to preserve the status quo; (b) to enjoin a breach or threatened breach of this User Agreement; (c) to obtain specific performance; (d) to compel the arbitration or further its purposes and/or to enforce a settlement or award of such arbitration; and/or (e) for any other equitable relief. If the User does not agree to the provisions set forth in the dispute resolution provision, the User shall provide notice of same to the Company no later than thirty (30) days from entering into this User Agreement and in accordance with the “Notice” provision set forth herein. The User acknowledges that his failure to provide such notice to the Company within the time set forth herein shall preclude, bar, restrict and/or prohibit User from asserting, alleging, claiming and/or otherwise taking the position that the dispute resolution provision is unenforceable, illegal, unconscionable and/or otherwise improper and/or constitutes a contract of adhesion in any action, arbitration and/or other legal proceeding.
Arbitration Demand Procedure. A claim or dispute by a User or the Company may only be submitted to arbitration if the opposing party is first served with a written demand for same. The party requesting arbitration (the “Requesting Party”) shall provide the opposing party (the “Opposing Party”) with a recommendation for a suggested arbitrator (the “Suggested Arbitrator”) in conjunction with the written demand for arbitration. If the Opposing Party objects to the Suggested Arbitrator, such objection must be set forth in writing and submitted to the Requesting Party within five (5) days, or the objection shall be waived and the Suggested Arbitrator will be deemed appointed. The objection shall be accompanied by the Opposing Party’s recommendation for an arbitrator. The Requesting Party shall have five (5) days to submit his objection to the Opposing Party’s recommendation. Thereafter, should the parties be unable to agree upon an arbitrator, the arbitrator shall be chosen by a determination of a court of competent jurisdiction. Either party may make a motion for this determination.
Conference, Discovery and Motions. The arbitrator shall conduct an initial telephone or in-person conference, in the form of a pre-hearing conference to discuss arbitration procedure, within ten (10) days of the arbitrator’s appointment. Both parties to the arbitration shall submit and serve on the other party arbitration statements no later than two (2) days prior to the conference. The Company and the User shall each have the following procedures available to them, in any order or all at once, with regard to the arbitration: (a) they may each serve up to thirty (30) interrogatories inclusive of subparts which shall be answered within ten (10) days; (b) they may each serve twenty (20) document requests inclusive of subparts which shall be answered within ten (10) days; (c) they may each serve up to thirty (30) requests for admissions which shall be answered within ten (10) days; (d) they may each take up to five (5) depositions, which may be scheduled upon ten (10) days notice, as to which all Parties shall cooperate in producing and locating witnesses (third party witness attendance may be compelled by issuance of a subpoena); (e) they may each serve a summary judgment motion(s) or motion(s) to dismiss on the basis that the matter should be disposed of in whole or in part as a matter of law; and (f) either party to the arbitration may serve a motion(s) to dismiss or suppress based upon a failure to respond to discovery. Such motions may be served at any time twenty (20) days after the arbitrator is appointed. The responding party will have ten (10) days to respond to the motions. The motions shall be heard by the arbitrator and disposed of within ten (10) days thereafter and the arbitrator may allow replies and sur-replies in his discretion. Notwithstanding anything to the contrary herein, service under this Dispute Resolution clause shall be deemed complete upon mailing to a party’s counsel, or if pro se, to the party directly with an additional three (3) day period for service by regular mail. Time shall be deemed of the essence in regard to any procedures set forth herein and any requests for extension shall be considered by the arbitrator only upon a showing of good cause. Oral argument shall not be required unless a party requests it. The standards for deciding motions shall be those set forth under the case law of the court having competent jurisdiction over this matter.
Determination, Award and Costs. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, specific performance of any obligation created under this User Agreement, or the issuance of injunctive relief. The award rendered by the arbitrator in any arbitration under this User Agreement is final and binding on the parties. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof. Each party to the arbitration perform all acts, including the execution and delivery of further documents, as the arbitrator determines is necessary or desirable to confirm and carry out the terms of the award rendered. Each party shall initially bear its own costs, expenses and administrative fees and an equal share of the arbitrator’s fees until such time, if at all, a party is awarded its costs, expenses and fees by the arbitrator. In the event that there is a disproportionate ratio of plaintiffs, defendants or other parties, the arbitrator may consider a reallocation of arbitrator’s fees and expenses in his sole discretion. If either party needs a translator they shall equally bear that expense. If a third party witness requires a translator, the party calling the witness shall bear the expense. Each party shall bear their own travel costs and those of any party or witness they bring. If a party or his attorney does not appear at the arbitration hearing the arbitrator shall strike its claims and/or suppress its defenses and conduct a proof hearing. The arbitration award may be appealed to a court of competent jurisdiction solely on the basis that the award was arbitrary or capricious.
Jurisdiction. The User agrees that the laws of the State of New Jersey shall govern this User Agreement and any dispute, controversy or claim directly or indirectly related to use of the Website, use of any of the Materials, or any use of any of the Company’s goods or services. Further, the User consents to the jurisdiction of the Superior Court of the State of New Jersey or, if federal jurisdiction exists, at the option of either party, to the jurisdiction of the United States District Court for the District of New Jersey, Newark Vicinage, to seek injunctive relief, compel an arbitration and/or enforce an arbitrator’s award. Any arbitration shall be conducted in Morris County, New Jersey. Service of the written notice to initiate the aforementioned arbitration shall be deemed complete when sent either as required by Court procedure or by (i) electronic mail to any of the User’s current or future electronic mail addresses; (ii) ordinary mail or ordinary or two-day mail by a commercial carrier, in the event a regular mailing address has been provided by the party upon which service is being effected or is otherwise determined by the serving party; or (iii) otherwise in accordance with the laws and procedures of the State of New Jersey. The User agrees that regardless of any statute or law to the contrary, but only to the extent allowed by law, any claim or cause of action by User arising out of or related directly or indirectly to User of the Website or Company’s services must be filed within one (1) year after such claim or cause of action arose or be forever barred and therefore the statute of limitations is limited to one (1) year.
Further Assurances. The User covenants and agrees to perform all further acts and execute all supplementary instruments or documents which may be requested by the Company to carry out the provisions and effectuate the intent of this User Agreement. Such assurances or further acts shall be rendered by the User within five (5) days of the Company’s delivery of the request for the same, and shall be delivered in accordance with the Notice provision of this User Agreement.
Assignment. The Company may freely assign its rights and obligations in and to this User Agreement. The User acknowledges that he may not assign, transfer or sell his rights or delegate his obligations under this User Agreement without the Company’s advance written consent, which may be unreasonably withheld. Any purported assignment without the Company’s consent shall be deemed null and void.
Severability. One or more provisions of this User Agreement may be legally prohibited or otherwise unenforceable in certain jurisdictions and not others. In such event, this User Agreement shall be construed in a manner that is consistent with prevailing law in the jurisdiction in which it is enforced. Therefore, if any provision of this User Agreement is prohibited or otherwise unenforceable in a jurisdiction where it is being enforced, (a) it shall nevertheless be enforced to the fullest extent allowed by that prevailing law and (b) all other provisions of this User Agreement shall remain in full force and effect and shall not be invalidated or rendered unenforceable.
No Third Party Beneficiaries. This User Agreement is not intended to be for the benefit of, and shall not be enforceable by, any unaffiliated third party, except as may be specifically provided herein. Nothing herein, express or implied, is intended to or shall confer on any third party any rights (including third party beneficiary rights), remedies, obligations or liabilities under or by reason of this User Agreement or otherwise set forth in the Website, except as may be specifically provided herein. This User Agreement shall not provide third parties with any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to the terms herein. No third party shall have any right, independent of any right that exists irrespective of this User Agreement, to bring any suit at law or equity for any matter governed by or subject to the provisions herein.
Prohibited by Law. The Company does not represent that the Website and the Materials contained therein are appropriate or available for use in any particular geographic location. Users Using the Website or any of the Company’s services, and the Materials contained therein and incorporated therewith do so on their own initiative. In the event that any aspect of the Website, the Company’s services, or this User Agreement is prohibited by law in User’s jurisdiction, User agrees not to use the same. It is solely User’s responsibility to determine whether he is allowed to use the Website or any of the Company’s services. Without limitation, the User releases the Company from all liability that could arise from User’s prohibited participation in the Website or the Company’s services, or acceptance of this User Agreement. Moreover, and without limiting the indemnification otherwise provided herein, User shall indemnify, defend and hold the Company and all Company Parties harmless for any and all damages relating to a violation of this paragraph or any violation of the law by the User.
Without limiting the foregoing, aspects of the Website, Materials and Company’s goods and services, may be subject to U.S. export controls and may not be downloaded, exported or re-exported: (a) into or to a national or resident of Cuba, Iran, North Korea, Sudan, Syria or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods (collectively, “Prohibited Countries”); or (b) to anyone who is on, or who may be acting on behalf of an entity that is on, the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List or otherwise included in General Order 3 (15 C.F.R. Part 736, Supplement 1), which prohibits exports to Mayrow General Trading, affiliated entities and persons and specified persons involved in the manufacture or sale of Improvised Explosive Devises (collectively, the “Lists of U.S. Prohibited Parties”). By Using the Website or any of the Company’s services, the User makes the material representation and warranty upon which he seeks the Company to reasonably rely that he is not (a) located in any of the Prohibited Countries; (b) a national or resident of any of the Prohibited Countries; (c) on any of the Lists of U.S. Prohibited Parties; or (d) acting on behalf of any person or entity that is on any of the Lists of U.S. Prohibited Parties
Moreover, and in light of the international scope of the Internet, User agrees to comply with all local laws, rules and regulations, including but not limited to those applicable to online conduct and acceptable Internet content. Without limitation, User acknowledges and agrees that he shall comply with all applicable laws and regulations regarding the transmission of technical data from the United States or the country in which the User may reside. In the event that the User is located outside the United States, the User acknowledges and agrees that he, and not the Company, is responsible for ensuring that any goods or services that he may purchase from the Company are permitted to be imported into the country in which he is located.
Miscellaneous. The Company’s failure to enforce any term, provision or condition of this User Agreement, including the breach or default thereof, by conduct, course of dealing or otherwise, in one or more instances shall not be deemed a waiver. To the extent that a provision of this User Agreement is deemed unenforceable, the balance of it shall remain in full force and effect. The User specifically acknowledges that he has not accepted this User Agreement on reliance of any representations or other promises of the Company, which are not specifically included herein. The User specifically stipulates that this User Agreement does not constitute a contract of adhesion. The gender terms in this User Agreement shall apply equally to either gender. The headings in this User Agreement shall have no force and effect. User acknowledges and agrees that this User Agreement constitutes the entire agreement of the Parties hereto relating to the subject matter hereof, and any prior agreements, understandings, representatives and commitments concerning such subject matter, whether oral or written, are hereby superseded and terminated in their entirety and are of no further force or effect.
The User represents that he has had the opportunity to review this User Agreement with counsel of the User’s choosing, if the User wished to do so. The User further acknowledges that he has thoroughly read this User Agreement; understands that he is giving up certain legal rights that may otherwise exist; has asked any questions he desires to clarify its meaning; and believes it is in his interest to nevertheless proceed with utilizing the Website or other of the Company’s goods and services.