These Terms of Service (the “Agreement”) set forth the terms and conditions that apply to your access and use of the internet website owned and operated by Aquascape, Inc (“Aquascape”) and located at aquascapeinc.com and *.aquascapeinc.com (the “Site”) including all subsidiary webpages and access to any optimized version of the Site via a wireless device, and access and use of the services available thereon (the “Services”). This Agreement is legally binding between you, the person using this Site, and Aquascape. Terms such as “we,” “our” and “us” refer to Aquascape.
On our Site, we may provide short summaries of the terms and conditions in this Agreement. Any such summaries are provided only for your convenience, are not legally binding and do not modify this Agreement in any way.
Ability to Enter into this Agreement
This Site and the Services are not designed for or directed at children 13 years of age or younger. In addition, in order to enter into this Agreement, you must be 18 years old or have otherwise reached the legal age of majority in your jurisdiction of residence or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you in your jurisdiction of residence or otherwise. If you accept this Agreement, you represent that you have the capacity to be bound by it.
You may not use the Services and may not accept this Agreement if (a) you are not of legal age to form a binding contract with Aquascape, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are a resident or from which you use the Services.
Before you continue, you should print or save a local copy of this Agreement for your records.
Your Profile Information and Account
In order to access certain Services, you may be required to provide information about yourself (such as API, identification or contact details) as part of the registration process for the Service or as part of your continued use of the Services. You may also have to create passwords or other forms of authentication. You agree to provide true, accurate, current and complete information about yourself, and you may not misrepresent your profile information. You agree and understand that you are responsible for maintaining the confidentiality of any such information or passwords. Accordingly, you agree that you will be solely responsible to Aquascape for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Aquascape immediately.
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You agree not to disclose your password to any third party. You are solely responsible for all activities that occur under your Account or under your Profile Information. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying Aquascape immediately.
By providing us with your e-mail address, you agree to receive all required notices electronically to that e-mail address. It is your responsibility to update or change that e-mail address, as appropriate.
Intellectual Property Rights
All right, title, interest and ownership and intellectual property rights in and to the Site, Aquascape trademarks and the templates provided via the Site, including but not limited to its “look and feel” (e.g., text, graphics, images, logos, buttons, icons and the placement and layout thereof), images, video, audio, data, content, software (including html-based computer programs) and other media, material or information, are and will remain the property of Aquascape or its software or content suppliers. The Site is protected under Canada, United States and international copyright, trademark and other laws and treaties.
You acknowledge that any ideas, suggestions, concepts, processes or techniques which you provide to Aquascape related to the Services, the Site or Aquascape or its business (“Feedback”) shall become Aquascape’s property without any compensation or other consideration payable to you by Aquascape, and you do so of your own free will and volition. Aquascape may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Aquascape may decide into the Site, its software, services, documentation, business or other products, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to Aquascape in any Feedback and, as applicable, waive any moral rights.
Aquascape owns any test results, data information and other output generated by your use of the Site and/or the Services during the term of this Agreement.
You agree to safeguard, keep secret and not to disclose to any third party, any Confidential Information acquired, learned or provided from Aquascape during the term of this Agreement or following the expiration or termination of this Agreement. “Confidential Information” means any information marked confidential or that ought reasonably to be considered confidential under the circumstances and includes, without limitation, any business plans, customer lists, operation procedures, trade secrets, know-how and processes, inventions, discoveries, and improvements of any kinds.
Disclaimer of Warranties
YOUR USE OF THE SITE AND ALL CONTENT FORMING PART OF OR RELATED TO THE SITE, INCLUDING ANY CONTENT YOU UPLOAD OR SUBMIT AND ANY THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AQUASCAPE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT.
AQUASCAPE DISCLAIMS ANY WARRANTY THAT THE SITE OR ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT, FROM TIME TO TIME, AQUASCAPE MAY REMOVE THE SITE FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU. YOUR ACCESS AND USE OF THE SITE MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SITE OR OTHER ACTIONS THAT AQUASCAPE, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE.
AQUASCAPE IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY AQUASCAPE, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY AQUASCAPE.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AQUASCAPE OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
THE SITE IS OFFERED AND CONTROLLED BY AQUASCAPE FROM ITS FACILITIES IN THE UNITED STATES. AQUASCAPE MAKES NO REPRESENTATIONS THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
Limitation of Liability / Exclusion of Consequential and Related Damages
Aquascape reserves the right to modify, suspend or discontinue the Site and/or Services, or any portion thereof, with or without notice at any time and for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. Aquascape shall have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result of using the Site and/or Services.
You agree to indemnify, defend, and hold harmless Aquascape, and its subsidiaries, affiliates, co-branders, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) arising out of or relating to this Agreement or the Site, including but not limited to in relation to: (a) your use, non-use or misuse of, or connection to the Site, the Services and any Content, including without limitation your Content and any third party Content, forming part of the Site; (b) your breach or alleged breach of this Agreement; and (c) your violation of any rights, including intellectual property rights, of a third party. Aquascape reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Aquascape and you agree to cooperate with Aquascape’s defense of these claims. You agree not to settle any matter without the prior written consent of Aquascape. Aquascape will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Agreement to Governing Law and Jurisdiction
If there is any dispute between you and Aquascape about or involving this Agreement, the Site or the Services, you hereby agree that the dispute shall be governed by and construed in accordance with the laws of the state of Illinois, without regard to its conflict of law provisions.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
You agree that this Agreement is specifically enforceable by injunctive relief and other equitable remedies without proof of monetary damages.
You agree that if Aquascape does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Aquascape has the benefit of under any applicable law), this will not be taken to be a formal waiver of Aquascape’s rights and that those rights or remedies will still be available to Aquascape.