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
(C) the accompaniment of
advertisements around the Materials within your web site or service.
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;
(C) a description of where the
material that you claim is infringing is located on the DevZone;
(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.