deCarta - Terms of Use

DECARTA DEVELOPER ZONE USER AGREEMENT

Welcome to the deCarta Developer Zone. Your use of the deCarta Developer Zone products, software, services, web site, and content (collectively, "DevZone") is subject to the terms and conditions set forth in this user agreement ("Agreement"). This Agreement governs the relationship between deCarta ("deCarta," "we," "us") and you (including your employer and your affiliates and its or their employees, contractors and authorized agents, "you," "your") with respect to your membership and use of DevZone.

1. REGISTRATION

In order to participate in DevZone, you are required to provide information about yourself as prompted by our online registration form as part of the registration process. You agree that any registration information you provide to deCarta will always be accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we have the right to immediately without notice and without refund terminate your DevZone membership and your use of the DevZone. deCarta or one of its authorized agents will notify you if your application for membership is accepted. You acknowledge and agree that we have the right to deny membership in DevZone to any applicant at our sole discretion.

You understand and agree that you are responsible for maintaining the confidentiality of any username and password associated with your use of any part of the DevZone. Accordingly, you agree to accept sole responsibility for all activities that occur under your account or password.

You agree to immediately notify deCarta of any unauthorized use of your account or password or any other compromise of security. deCarta reserves the right to take any and all action, as it deems necessary or reasonable, to ensure the security of DevZone and your account, including without limitation terminating your account, changing your password, or requesting additional information to authorize transactions on your account. Notwithstanding the above, deCarta may rely on the authority of anyone accessing your account or using your password.

2. PROPRIETARY RIGHTS

All legal right, title and interest in and to the DevZone including any intellectual property rights which subsist in the DevZone (whether those rights happen to be registered or not, and wherever in the world those rights may exist) are and will remain the exclusive property of deCarta and/or its licensors.

The trademarks and service marks displayed on the DevZone are registered and unregistered trademarks of deCarta and may not be copied, imitated or used, in whole or in part, without the prior written permission of deCarta or, if applicable, its licensor. Unless you have agreed otherwise in writing with deCarta or, if applicable, its licensor, nothing in this Agreement gives you a right to use any of deCartaÂs trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.

Unless you have been expressly authorized to do so by deCarta, you agree that in using the DevZone, you will not use any trade mark, service mark, trade name, logo of any company of organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names, or logos.

3. AUTHORIZED USE

You are granted a limited, non-transferable, non-sublicensable right to access the DevZone for your personal, non-commercial, and informational use only.

Unless otherwise specified on the DevZone, during the term of this Agreement you may download materials, such as content, data files, text, graphics, images, audio and video files, logos, icons, software or links (collectively "Materials") displayed on the DevZone, and may use the downloaded Materials, solely for your internal business needs. You must retain all copyright and other proprietary notices on downloaded and copied Materials, and any such downloads or copies are subject to the terms and conditions of this Agreement. Further, the Materials remain the property of deCarta or its licensors or suppliers. You may not download, copy or use any of the Materials except as expressly authorized by this Agreement. We are not responsible for any errors or omissions in submissions from you or any other source, for hyperlinks embedded in messages or for any results obtained from the use of such information. Under no circumstances will we or our suppliers or agents be liable for any loss or damage caused by your reliance on such information obtained through the DevZone.

The foregoing license grant does NOT include the right for you to:

(A) publish, publicly perform or display, modify, make derivative works based on, or distribute to any third party any part of DevZone or any Materials, including reproduction on any computer network or broadcast or publications media;

(B) reproduce, duplicate, copy, market, sell, trade, resell or exploit for any commercial purposes, any portion of the DevZone or any Materials;

(C) systematically collect and use any data or content including the use of any data mining including but not limited to spiders, scrapers, robots, or similar data gathering and extraction methods;

(D) make derivative works based on the DevZone or the Materials with the intent of commercial use of the derivative works; or

(E) use, frame, or utilize framing techniques to enclose any portion of the DevZone (including the images found on the DevZone or any text or the layout/design of any page or form contained on a page).

For the sake of clarification, commercial use shall include the following:

(A) deployment of the Materials in a production environment;

(B) restricting access (via passwords, usage fees or other safeguards) to the Materials within your own web site or service; or

Except for the limited license granted to you, you are not conveyed any other right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of deCarta or any third party. Any unauthorized use of the DevZone will terminate the permission or license granted by this Agreement and may violate applicable law including copyright laws, trademark laws (including trade dress), and communications regulations and statutes.

4. COPYRIGHT INFRINGEMENT COMPLAINTS UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT (ÂDMCAÂ)

deCarta respects the intellectual property of others. If you believe that your work has been copied and has been posted, stored or transmitted to the DevZone in a way that constitutes copyright infringement, please contact deCarta at copyright@deCarta.com, or Four North Second Street, Suite 950, San Jose, CA 95113. You must provide the following written information:

(A) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

(B) a description of the copyrighted work that you claim has been infringed upon;

(D) your address, telephone number, and e-mail address;

(E) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

(F) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

5. THIRD-PARTY PRODUCTS AND SERVICES

DevZone offers products and services from third parties that may not be affiliated with deCarta. Except for deCarta-branded information or products or services that are specifically identified as being supplied by deCarta, deCarta does not operate, control, or endorse any third-party information, products, or services on the DevZone or accessible through the DevZone in any way. deCarta is not responsible for examining or evaluating, and deCarta does not warrant the offerings of, any of these businesses or individuals or the content of their Web Site. deCarta does not assume any responsibility or liability for the actions, products and content of these and any other third parties. You should carefully review their privacy statements and terms of use.

6. LINKS TO THE DEVZONE

You are granted a limited, nonexclusive, non-transferable, non-sublicensable right to create a hypertext link to the homepage of the DevZone, provided such link does not portray deCarta or any of its products and services in a false, misleading, derogatory, or otherwise defamatory manner. You may not use a deCarta logo or other proprietary graphic or trademark of deCarta to link to the DevZone without the express written permission of deCarta. This limited right may be revoked at any time.

7. THIRD-PARTY LINKS

deCarta may provide, or third parties may provide, links to other World Wide Web sites or resources. deCarta has no control over such sites and resources and you acknowledge and agree that deCarta makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of such sites or resources accessible by hyperlink from the DevZone. deCarta is providing these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement, or adoption by deCarta of the web site or any information contained therein. You further acknowledge and agree that deCarta shall not be responsible or liable, directly, or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content available on or through any such site or resource.

8. SUBMISSIONS

By sending or transmitting to us any suggestions, ideas, notes, concepts, information or other materials (collectively "Submissions"), or by posting such Submissions to any area of the DevZone, you grant us a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions. You also grant to deCarta the right to use your name in connection with the Submissions and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against deCarta for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions and that the submission of any such materials to deCarta, including the posting of materials to any forum or interactive area on the DevZone, irrevocably waives any and all "moral rights" in such materials, including the rights of paternity and integrity. You represent and warrant that you own or otherwise control all of the rights to the material that you post; that the material is accurate; that use of the material you supply or post does not violate this Agreement, any applicable laws and will not cause injury to any person or entity; and that you will indemnify deCarta for all claims resulting from your Submissions. Except as described above, personally identifiable information (as defined in deCarta's Privacy Policy) that you submit or post to non-public areas of the DevZone shall be subject to deCarta's Privacy Policy.

9. EXPORT RESTRICTIONS

Any software and all underlying information and technology downloaded from the DevZone (collectively the "Software") by you may be subject to U.S. export controls, including the Export Administration Act and the Export Administration Regulations, and may be subject to export or import regulations in other countries. You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the Software to any county, or to any person, entity, or end-user subject to U.S. export controls. You further represent and warrant that no U.S. federal agency has suspended, revoked, or denied your export privileges.

10. FEES AND TERM

The initial period of your participation in DevZone shall commence on the day you are first admitted as a member of DevZone and shall continue in force for one year after the first day of the calendar month immediately following your admission. For example, if you are admitted as a member of DevZone on January 15, 2007, your membership would expire on February 1, 2008. deCarta will not refund your membership fee or any portion thereof for any reason. deCarta may change membership fees at any time, but no change will apply to you unless you choose to renew your membership. Notwithstanding the foregoing, membership fees do not include the cost of Software and data, even though certain Software and data may be provided from time to time at no charge. deCarta reserves the right to change its prices for Software and data at any time.

11. MODIFICATIONS

deCarta reserves the right to update and modify, from time to time, (a) the terms and conditions of membership to the DevZone, (b) the DevZone, including without limitation eliminating or discontinuing any content on, or feature of the DevZone, or (c) any fees or charges for membership in DevZone. Any changes we make will be effective immediately upon notice, which we may provide by means including, without limitation, posting on the DevZone. Your continued use of the DevZone after such notice will be deemed acceptance of such changes. You agree that deCarta shall not be liable to you for any modification, suspension or discontinuance of the DevZone.

12. INFORMATION

The Materials available through DevZone are provided on an "AS IS" and "AS AVAILABLE" basis and should not be construed as professional advice on any subject matter (please see "Disclaimers" Section for more information). deCarta is not engaged in rendering professional services, and availability or use of the Materials is not intended to create, and does not create, any professional services relationship.

13. MAKING PURCHASES

If you wish to purchase products or services described on the DevZone, you will be asked by deCarta or the third party provider of the product or service to supply certain information applicable to your purchase, including, without limitation, credit card and other information. You understand that any such information will be treated by deCarta in the manner described in our Privacy Policy, which can be found at http://developer.deCarta.com. You agree that all information you provide to deCarta or such third party provider will be accurate, current and complete. You agree to promptly pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by deCarta.

14. CONFIDENTIALITY

You acknowledge that your membership and use of the DevZone may expose you to certain Confidential Information of deCarta. "Confidential Information" means any and all information and material (whether in writing, or in oral, graphic, electronic or any other form) that is marked or described as, identified in writing as, or provided under circumstances indicating it is, confidential or proprietary. You shall hold all Confidential Information in strict confidence and shall not disclose any Confidential Information to any third party. You shall disclose the Confidential Information only to your employees and agents who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. You shall take the same degree of care that you use to protect your confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information. This Section 14 shall survive any termination or expiration of this Agreement. Further, this Section 14 is not intended to (and does not) supersede any obligations assumed by you (whether now or in the future) under a separately signed nondisclosure or confidentiality agreement with deCarta.

15. TERMINATION

This Agreement will remain effective until terminated in accordance with its terms. Either party may terminate this Agreement immediately upon notice to the other party. In addition, we reserve the right to immediately terminate this Agreement, your membership in DevZone and your access to and use of the DevZone or any portion thereof, at any time and for any reason, with or without cause. Upon termination of this Agreement by either party, your right to use the DevZone will immediately cease, and you shall destroy all Materials obtained from or through DevZone and all copies thereof, whether made under the terms of this Agreement or otherwise.

16. DISCLAIMERS

THE DEVZONE PROGRAM AND THE MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE DEVZONE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS, OR SERVICES AVAILABLE THROUGH THE DEVZONE. YOU EXPRESSLY AGREE THAT YOUR MEMBERSHIP AND USE OF THE DEVZONE IS AT YOUR SOLE RISK AND RESPONSIBILITY.

DECARTA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE INFORMATION, MATERIALS, CONTENT, SERVICES AND PRODUCTS AVAILABLE THROUGH THE DEVZONE OR ON OR THROUGH THE DEVZONE SITE. DECARTA CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE DEVZONE SITE OR ITS SERVERS WILL BE ERROR-FREE, UNINTERRUPTED, TIMELY, FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD-PARTY HACKERS OR DENIAL OF SERVICE ATTACKS), OR OTHERWISE MEET YOUR REQUIREMENTS.

17. LIMITATION OF LIABILITY

IN NO EVENT SHALL DECARTA BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (a) YOUR PARTICIPATION IN THE DEVZONE OR YOUR USE OR INABILITY TO USE THE DEVZONE SITE OR THE CONTENT, MATERIALS, INFORMATION, OR TRANSACTIONS PROVIDED THROUGH THE DEVZONE PROGRAM OR ON OR THROUGH THE DEVZONE SITE, (b) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES ON THE DEVZONE SITE OR THE CONTENT, MATERIALS, INFORMATION, PRODUCTS, OR SERVICES AVAILABLE THROUGH THE DEVZONE PROGRAM OR ON OR THROUGH THE DEVZONE SITE, EVEN IF deCarta OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (c) YOUR FAILURE TO PROVIDE DECARTA WITH ACCURATE ACCOUNT INFORMATION, (d) ANY COMPROMISE OF THE CONFIDENTIALITY OF YOUR ACCOUNT AND PASSWORD, OR (e) ANY UNAUTHORIZED ACCESS TO YOUR ACCOUNT OR PASSWORD.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF DECARTA (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) ARISING OUT OF OR RELATING TO THE USE OF THE DEVZONE PROGRAM OR THE DEVZONE SITE EXCEED THE MEMBERSHIP FEES ACTUALLY PAID BY YOU.

Certain state laws do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations, may not apply to you, and you may have additional rights to those contained herein.

18. INDEMNIFICATION

You agree to indemnify, defend and hold deCarta, our affiliates, licensors, suppliers, advertisers and sponsors, and our and their directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees) and other expenses that arise directly or indirectly (i) out of or from your breach of this Agreement; or (ii) from or in connection with any action, proceeding or claim made or brought by any person or entity that any Materials provided or posted by or on behalf of you to DevZone infringes or misappropriates any copyright, trademark, patent, utility model, industrial design, mask work, trade secret or other proprietary right.

19. MISCELLANEOUS

This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in Santa Clara County, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between us with respect to such subject matter. This Agreement is not assignable, transferable or sublicensable by you except with deCarta's prior written consent. The failure of deCarta to exercise or enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

I hereby represent and warrant that I am at least 18 years of age and have carefully read this Agreement, and that I agree to all of the terms and conditions set forth in this Agreement.