TinyTorch reserves the right, in its discretion, to change or modify all or any part of this Membership Agreement at any time, effective immediately upon notice published on the Site. Your continued use of the membership portions of the Site after such notice constitutes your binding acceptance of the terms and conditions in this Membership Agreement, including any changes or modifications made by TinyTorch as permitted above. If at any time the terms and conditions of this Membership Agreement are no longer acceptable to you, you should immediately cease use of the membership portions of the Site.
Use of Content
You acknowledge that the Site contains or may contain information, software, photographs, illustrations, audio files, video files, animations, flash files, data files, code snippets and other material (collectively, “Content”) which is protected by copyright, trademark or other proprietary rights of TinyTorch and its affiliates or other third parties (including other members).
You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, reverse engineer or in any way exploit any of the Content, in whole or in part, except as otherwise expressly permitted in this Membership Agreement and any other agreement entered into at the time such Content was downloaded (such as a Content License Agreement).
Content is provided to the Site through members, either on an exclusive or non-exclusive basis. You may post on the Site any Content owned wholly by you. You may use Content only in accordance with the terms of this Membership Agreement and the then applicable Content License Agreement.
Registration Data and Account Security
In consideration of your use of the Site, you agree to: (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site (“Registration Data”); (b) maintain and promptly update the Registration Data, and any other information you provide to TinyTorch, to keep it accurate, current and complete; (c) maintain the security of your password and identification; (d) notify TinyTorch immediately of any unauthorized use of your account or other breach of security; (e) accept all responsibility for any and all activities that occur under your account; and (f) accept all risks of unauthorized access to the Registration Data and any other information you provide to TinyTorch.
Rules of Conduct
You agree that you will not use the Site for any purpose that is unlawful or not permitted by this Agreement. By way of example, and not as a limitation, you agree that when uploading to or communicating via the Site, including in respect of any forums, chat-rooms or other exchanges (a “Forum”) accessed on or through the Site, you shall not do any of the following:
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy) of others.
Publish, post, distribute or disseminate any defamatory, infringing, obscene, pornographic, sexual, indecent or unlawful material or information.
Upload or otherwise transfer files that contain software or other material protected by intellectual property laws (or by rights of privacy or confidentiality) unless you own or control the rights thereto or have received all necessary consents.
Upload or otherwise transfer files that contain viruses, corrupted files or any other similar software or programs that may damage or inhibit the operation of another computer.
Delete any author attributions, legal notices, or proprietary designations or labels in any file that is uploaded.
Falsify the origin or source of software or other material contained in a file that is uploaded.
Advertise or offer to sell any goods or services or conduct or forward surveys, contests or chain letters.
Download any file posted by another user of a Forum that you know, or reasonably should know, cannot be legally distributed in such manner.
Use any communications or Content or other information obtained through the Site in a manner that is competitive with the Site or TinyTorch’s business.
You acknowledge that Forums are public and not private communications. Further, you acknowledge that no communication of a third party or Content is endorsed by TinyTorch and no communication of a third party or Content may be considered reviewed, screened or approved by TinyTorch. As explained below, TinyTorch reserves the right for any reason to remove without notice any communication, Content or other material posted to the Site.
You also agree not to use the Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You also agree not to attempt to gain unauthorized access to any other TinyTorch member accounts, computer systems or networks associated with the Site. You also agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.
TinyTorch does not and cannot review all communications or Content uploaded to the Site and is not responsible for the content of such communications or Content. Notwithstanding the foregoing, TinyTorch reserves the right to delete, move or edit any communication or Content that it may determine, in its sole discretion, violates or may violate this Membership Agreement or is otherwise unacceptable. You shall remain solely responsible for all communications made or Content uploaded under your Member Name. TinyTorch shall have the right but not the obligation to correct any errors or omissions in any Content, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by TinyTorch to determine Accepted Content is done as a courtesy only.
You acknowledge that the Confidential Information (defined below) which you obtain through the entering into of this Membership Agreement and the use of the Site constitutes valuable, confidential, proprietary information of TinyTorch and its licensors, and you agree that during the term of this Membership Agreement and thereafter you shall not, without the express written consent of TinyTorch, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Membership Agreement or as required by applicable law.
For the purposes of this Membership Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of TinyTorch, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, finances, research, development, know-how, trade-secrets, training materials, personnel, clients, methodologies, Site content belonging to others and other intellectual property.
You agree to indemnify, defend and hold TinyTorch and its affiliates, and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “TinyTorch Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including lawyers’ fees on a solicitor and client basis) incurred by any TinyTorch Party in connection with: (i) any use or alleged use of the Site under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; or (iii) any breach by you of this Membership Agreement. TinyTorch reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with TinyTorch’s defense of such claim.
Term and Termination
This Membership Agreement is effective until terminated. You may terminate this Membership Agreement at any time by emailing [email protected] or by such other means of written notice acceptable to TinyTorch which enables confirmation of your identity and your intention to terminate. TinyTorch reserves the right, in its sole discretion, to restrict, suspend or terminate your right to access the membership portions of the Site at any time for any reason without prior notice or liability. TinyTorch may change, suspend or discontinue all or any aspect of the Site at any time, including the availability of any feature, database, or Content, without prior notice or liability.
TinyTorch may also terminate or suspend your access to the membership portions of the Site for inactivity, which is defined as failing to access the membership portions of the Site for an extended period of time, as reasonably determined by TinyTorch.
Termination of this Membership Agreement does not relieve you of your responsibilities to pay any amounts due to TinyTorch under this Membership Agreement or your obligations to not use the membership portions of the Site or any Content other than in the manner permitted under this Membership Agreement or any other agreement entered into at the time such Content was downloaded (such as a Content License Agreement). Termination of this Membership Agreement shall operate without prejudice to the TinyTorch’s rights, defenses and limitations of liability provided under this Membership Agreement, which rights, defenses and limitations of liability shall survive termination of this Membership Agreement.
Upon termination of your access to the membership portions of the Site, you agree to forfeit all download credits remaining in your account.
DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. TINYTORCH DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
TINYTORCH DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
LIMITATION OF LIABILITY
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
IN NO EVENT SHALL TINYTORCH OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, LICENSORS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS MEMBERSHIP AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF TINYTORCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, TINYTORCH’S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS MEMBERSHIP AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO FIVE ($5.00) CANADIAN DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF TINYTORCH OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Age and Responsibility
You represent and warrant that you are of sufficient legal age to use the Site and to create binding legal obligations for any liability you may incur as a result of the use of the Site. You agree to be responsible for all of your use of the Site (as well as for use of your Member Name and password(s) by others, including without limitation, minors living with you). You agree to supervise all usage by minors of the Site under your name or account.
The Site is controlled, operated and administered by TinyTorch from within the state of Utah, United States. The Site can be accessed from other countries around the world. As each of these jurisdictions has laws that may differ from those of the State of Utah, by accessing the Site, you acknowledge and agree that this Membership Agreement will be governed under the laws of the State of Utah and the federal laws of the United States applicable therein (without reference to conflicts of laws principles). You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the State of Utah, United States with respect to the subject matter of this Membership Agreement. This Membership Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
You consent to service of any required notice or process upon you by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Site, or such other address as you may advise us in writing to use, from time to time.
Any and all disputes arising out of, under or in connection with this Membership Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in the State of Utah, pursuant to the rules of the Arbitration Act in effect at the time arbitration is demanded.
If TinyTorch is obligated to go to court, rather than arbitration, to enforce any of its rights, or to collect any fees, you agree to reimburse TinyTorch for its legal fees, costs and disbursements if TinyTorch is successful.
TinyTorch’s failure to insist upon or enforce strict performance of any provision of this Membership Agreement shall not be construed as a waiver of any provision or right.
If any provision or part thereof of this Membership Agreement is wholly or partially unenforceable the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place thereof an enforceable provision or provisions, or part thereof, that as nearly as possible reflects the terms of the unenforceable provision or part thereof. This Agreement is personal to you and is not assignable by you without TinyTorch’s prior written consent. TinyTorch may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
The parties have requested that this Membership Agreement and all documents relating thereto be drawn up in English. Les parties ont demand que cette convention ainsi que tous les documents qui s’y rattachent soient en anglais.
If you have concerns relating to the Site or this Membership Agreement, please contact TinyTorch at [email protected] or via phone at (801) 362-4186.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS MEMBERSHIP AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND TINYTORCH, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND TINYTORCH RELATING TO THE SUBJECT OF THIS MEMBERSHIP AGREEMENT.