1. AGREEMENT
These Terms of Use (the “Agreement”) constitute a
legally binding agreement by and between AlphaGrade
(“AlphaGrade”) and you or your company (in either case,
“You” or “Your”) concerning Your use of AlphaGrade’s
website (the “Website”) and the services available
through the Website (the “Services”). By using the
Website, You represent and warrant that You have read
and understood, and agree to be bound by, the Agreement
and AlphaGrade’s Privacy
Policy (the “Privacy Policy”). IF YOU DO NOT
UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND
BY IT OR THE PRIVACY POLICY, YOU MUST IMMEDIATELY LEAVE
THE WEBSITE AND CEASE USING THE SERVICES.
2. PRIVACY POLICY
By using the Website, You consent to the collection and
use of certain information about You, as specified in
the Privacy Policy. AlphaGrade encourages users of the
Website to frequently check AlphaGrade’s Privacy Policy
for changes.
3. CHANGES TO AGREEMENT AND PRIVACY POLICY
Internet and the applicable laws, rules, and regulations
change frequently. ACCORDINGLY, ALPHAGRADE RESERVES THE
RIGHT TO CHANGE THIS AGREEMENT AND ITS PRIVACY POLICY AT
ANY TIME UPON NOTICE TO YOU, TO BE GIVEN BY THE POSTING
OF A NEW VERSION OR A CHANGE NOTICE ON THE WEBSITE. IT
IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT AND THE
PRIVACY POLICY PERIODICALLY. IF AT ANY TIME YOU FIND
EITHER UNACCEPTABLE, YOU MUST IMMEDIATELY LEAVE THE
WEBSITE AND CEASE USING THE SERVICES. Unless AlphaGrade
obtains Your express consent, any revised Privacy Policy
will apply only to information collected by AlphaGrade
after such time as the revised Privacy Policy takes
effect, and not to information collected under any
earlier Privacy Policies.
4. ELIGIBILITY
BY USING THE WEBSITE OR SERVICES, YOU REPRESENT AND
WARRANT THAT YOU ARE A
Parent, Guardian
OR Sponsoring individual WHO IS 18 years old and older;
OR Young Adult WHO IS age 10 to 18 with the consent of
their Parent / Guardian AND YOUR USE OF THE
WEBSITE OR SERVICES DOES NOT VIOLATE ANY APPLICABLE LAW
OR REGULATION. Any individual using the
Website or Services on behalf of a company further
represents and warrants that they are authorized to act
and enter into contracts on behalf of that company. This
Agreement is void where prohibited.
5. LICENSE
Subject to Your compliance with the terms and conditions
of this Agreement, AlphaGrade grants You a
non-exclusive, non-sublicensable, revocable as stated in
this Agreement, non-transferable license to use the
Website and Services. Except as expressly set forth
herein, this Agreement grants You no rights in or to the
intellectual property of AlphaGrade or any other party.
The license granted in this section is conditioned on
Your compliance with the terms and conditions of this
Agreement. In the event that You breach any provision of
this Agreement, Your rights under this section will
immediately terminate.
6. USER INFORMATION/PASSWORD PROTECTION
In connection with Your use of certain Services, You may
be required to complete a registration form. You
represent and warrant that all information You provide
on any registration form or otherwise in connection with
Your use of the Website and Services will be complete
and accurate, and that You will update that information
as necessary to maintain its completeness and accuracy
by emailing us at
support@AlphaGrade.com. For additional information,
see the section concerning User Ability To Access,
Update, And Correct Personal Information in AlphaGrade’s
Privacy Policy.
You may also be asked to provide, or may be given, a
user name and password in connection with certain of the
Services. You are entirely responsible for maintaining
the confidentiality of Your password. You may not use
the account, user name, or password of someone else at
any time. You agree to notify AlphaGrade immediately of
any unauthorized use of Your account, user name, or
password. AlphaGrade shall not be liable for any loss
that You incur as a result of someone else using Your
password, either with or without Your knowledge. You may
be held liable for any losses incurred by AlphaGrade,
its affiliates, officers, directors, employees,
consultants, agents, and representatives due to someone
else’s use of Your account or password.
7. THIRD-PARTY WEBSITES
The Website may be linked with the websites of a number
of third parties (“Third-Party Websites”), some of whom
may have established relationships with AlphaGrade and
some of whom may not. AlphaGrade does not have control
over the content and performance of Third-Party
Websites. ALPHAGRADE HAS NOT REVIEWED, AND CANNOT REVIEW
OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER
SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON
OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, ALPHAGRADE
DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY
WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS,
LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS
OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES.
ALPHAGRADE DISCLAIMS, AND YOU AGREE TO ASSUME, ALL
RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER
HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM
YOUR USE OF THIRD-PARTY WEBSITES.
YOU AGREE THAT, WHEN LINKING TO OR OTHERWISE
ACCESSING OR USING A THIRD-PARTY WEBSITE, YOU ARE
RESPONSIBLE FOR: (I) TAKING PRECAUTIONS AS NECESSARY TO
PROTECT YOU AND YOUR COMPUTER SYSTEMS FROM VIRUSES,
WORMS, TROJAN HORSES, MALICIOUS CODE AND OTHER HARMFUL
OR DESTRUCTIVE CONTENT; (II) ANY DOWNLOADING, USE OR
PURCHASE OF MATERIAL THAT IS OBSCENE, INDECENT,
OFFENSIVE, OR OTHERWISE OBJECTIONABLE OR UNLAWFUL, OR
THAT CONTAINS TECHNICAL INACCURACIES, TYPOGRAPHICAL
MISTAKES AND OTHER ERRORS; (III) ANY DOWNLOADING, USE OR
PURCHASE OF MATERIAL THAT VIOLATES THE PRIVACY OR
PUBLICITY RIGHTS, OR INFRINGES THE INTELLECTUAL PROPERTY
AND OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, OR THAT
IS SUBJECT TO ADDITIONAL TERMS AND CONDITIONS, STATED OR
UNSTATED; (IV) ALL FINANCIAL CHARGES OR OTHER
LIABILITIES TO THIRD PARTIES RESULTING FROM TRANSACTIONS
OR OTHER ACTIVITIES; AND (V) READING AND UNDERSTANDING
ANY TERMS OF USE OR PRIVACY POLICIES THAT APPLY TO THOSE
THIRD-PARTY WEBSITES.
8. CONSENT TO RECEIVE EMAIL
By establishing an account with AlphaGrade, You thereby
consent to receive periodic email communications from
AlphaGrade regarding the Services and other matters.
9. FEES & REFUND POLICY
You acknowledge that AlphaGrade reserves the right to
charge for the Services and to change its fees from time
to time in AlphaGrade’s sole discretion. If AlphaGrade
terminates Your Membership in accordance with this
Agreement, You shall not be entitled to the refund of
any unused portion of subscription fees.
10. ONLINE FORUMS
“Online Forum” is any area, site or feature offered as
part of the Website that enables You (a) to submit,
post, display and/or view User Content (as defined in
Section 11, below), and/or (b) to communicate, share, or
exchange User Content with other Website members or
visitors, including without limitation, discussion
forums, message boards, and chat rooms. You understand
and acknowledge that anything You submit or post by way
of any Online Forum may be viewed on the Internet by the
general public and that, therefore, You have no
expectation of privacy with regard to any such
submission or posting. You are, and shall remain, solely
responsible for the User Content submitted and/or posted
under your username, or otherwise by You, in any Online
Forum and for the consequences of submitting and posting
same. You understand and acknowledge that the use of
User Content posted on any Online Forum is at Your own
risk. AlphaGrade is not responsible for, and AlphaGrade
does not endorse, the opinions, advice or
recommendations posted or sent by users in any Online
Forum, and AlphaGrade specifically disclaims any and all
liability in connection therewith. Your ability to
access and view User Content with an Online Forum and/or
to submit and post User Content within an Online Forum
may be subject to certain age restrictions, and other
restrictions, that AlphaGrade may revise at its sole
discretion, at any time, for any reason or no reason at
all. Such restrictions will be posted with the Online
Forum, as applicable.
11. USER CONTENT
“User Content” is any publicly available messages and
any content, materials or information, not including
private messages and Personal Information (as defined in
AlphaGrade’s Privacy Policy),
that You upload or post to, or transmit, display,
perform or distribute by means of, the Website, whether
in connection with Your use of Services or otherwise.
YOU HEREBY GRANT ALPHAGRADE AND ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES,
SUBLICENSEES, SUCCESSORS, ASSIGNS, AND CONTRACTORS
(COLLECTIVELY, THE “AlphaGrade Parties”) A PERPETUAL,
FULLY PAID-UP, WORLDWIDE, SUBLICENSABLE, IRREVOCABLE,
ASSIGNABLE LICENSE TO COPY, DISTRIBUTE, TRANSMIT,
PUBLICLY DISPLAY OR PERFORM, EDIT, TRANSLATE, REFORMAT
AND OTHERWISE USE USER CONTENT IN CONNECTION WITH THE
OPERATION OF THE WEBSITE, SERVICES OR ANY OTHER SIMILAR
OR RELATED BUSINESS, IN ANY MEDIUM NOW EXISTING OR LATER
DEVISED, INCLUDING WITHOUT LIMITATION IN ADVERTISING AND
PUBLICITY. YOU AGREE TO WAIVE, AND HEREBY WAIVE, ANY
CLAIMS ARISING FROM OR RELATING TO THE EXERCISE BY THE
ALPHAGRADE PARTIES OF THE RIGHTS GRANTED UNDER THIS
SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIMS
RELATING TO YOUR RIGHTS OF PERSONAL PRIVACY AND
PUBLICITY. YOU WILL NOT BE COMPENSATED FOR ANY EXERCISE
OF THE LICENSE GRANTED UNDER THIS SECTION. You hereby
represent and warrant that You own all rights, title and
interest in and to User Content or are otherwise
authorized to grant the rights provided the AlphaGrade
Parties under this section. You further represent and
warrant that all User Content fully complies with
AlphaGrade’s Prohibited
Content Guidelines.
12. OBJECTIONABLE CONTENT
You represent and warrant that you shall not use the
Website or Services to upload, post, transmit, display,
perform, distribute or hyperlink to any content,
information or materials that: (a) are libelous,
defamatory, abusive, or threatening, excessively
violent, harassing, obscene, lewd, lascivious, filthy,
pornographic, may constitute a false accusation of
criminal activity, may constitute child pornography, may
solicit personal information from or exploit in a sexual
or violent manner anyone under the age of 18, or are
otherwise objectionable; (b) advocate or encourage
conduct that could constitute a criminal offense, give
rise to civil liability, or otherwise violate any
applicable local, state, national, or foreign law or
regulation; (c) advertise or otherwise solicit funds or
constitute a solicitation for goods or services; or (d)
violate any provision of this Agreement or any other
AlphaGrade agreement or policy, including without
limitation AlphaGrade’s Prohibited Content Guidelines
(collectively, “Objectionable Content”). AlphaGrade may
monitor the Website for Objectionable Content. Without
limiting any of its other remedies, AlphaGrade reserves
the right to terminate Your use of the Website and
Services or Your uploading, posting, transmission,
display, performance or distribution of Objectionable
Content. AlphaGrade, in its sole discretion, may delete
any Objectionable Content from its servers. AlphaGrade
intends to cooperate fully with any law enforcement
officials or agencies in the investigation of any
violation of this Agreement or of any applicable laws.
13. PROHIBITED USES
AlphaGrade imposes certain restrictions on Your use of
the Website and the Services. You represent and warrant
that you will not:
(a) violate or attempt to violate any security features
of the Website or Services;
(b) access content or data not intended for You, or log
onto a server or account that You are not authorized to
access;
(c) attempt to probe, scan, or test the vulnerability of
the Services, the Website, or any associated system or
network, or breach security or authentication measures
without proper authorization;
(d) interfere or attempt to interfere with the use of
the Website or Services by any other user, host or
network, including, without limitation by means of
submitting a virus, overloading, “flooding,” “spamming,”
“mail bombing,” or “crashing”;
(e) use the Website or Services to send unsolicited
e-mail, including without limitation promotions or
advertisements for products or services;
(f) forge any TCP/IP packet header or any part of the
header information in any e-mail or in any uploading or
posting to, or transmission, display, performance or
distribution by means of, the Website or Services; or
(g) attempt to modify, reverse-engineer, decompile,
disassemble or otherwise reduce or attempt to reduce to
a human-perceivable form any of the source code used by
the AlphaGrade Parties in providing the Website or
Services. Any violation of this section may subject You
to civil and/or criminal liability.
14. INTELLECTUAL PROPERTY
(a) Compliance with Law
You represent and warrant that, when using the Website
and Services, You will obey the law and respect the
intellectual property rights of others. Your use of the
Website and Services is at all times governed by and
subject to laws regarding copyright ownership and use of
intellectual property generally. You agree not to
upload, post, transmit, display, perform or distribute
any content, information or other materials in violation
of any third party’s copyrights, trademarks, or other
intellectual property or proprietary rights. YOU SHALL
BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND
FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY
YOUR USE OF THE WEBSITE AND SERVICES. THE BURDEN OF
PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO
NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS RESTS SOLELY
WITH YOU.
(b) Trademarks
AlphaGrade, AlphaGrade.com, the AlphaGrade logo (the
“AlphaGrade Marks”) are trademarks or registered
trademarks of MaGlobe, Inc. Other trademarks, service
marks, graphics, logos and domain names appearing on the
Website may be the trademarks of third parties. Neither
Your use of the Website and Services nor this Agreement
grant You any right, title or interest in or to, or any
license to reproduce or otherwise use, the AlphaGrade
Marks or any third-party trademarks, service marks,
graphics, logos or domain names. You agree that any
goodwill in the AlphaGrade Marks generated as a result
of Your use of the Website and Services will inure to
the benefit of AlphaGrade, and You agree to assign, and
hereby do assign, all such goodwill to AlphaGrade. You
shall not at any time, nor shall You assist others to,
challenge AlphaGrade’s right, title, or interest in or
to, or the validity of, the AlphaGrade Marks.
(c) Copyrighted Materials; Copyright Notice
All Content and other materials available through the
Website and Services, including without limitation the
AlphaGrade logo, design, text, graphics, and other
files, and the selection, arrangement and organization
thereof, are either owned by AlphaGrade or are the
property of AlphaGrade’s licensors and suppliers. Except
as explicitly provided, neither Your use of the Website
and Services nor this Agreement grant You any right,
title or interest in or to any such materials. Copyright
© 2008 to the present, MaGlobe, Inc. ALL RIGHTS
RESERVED.
(d) DMCA Policy
As AlphaGrade asks others to respect AlphaGrade’s
intellectual property rights, AlphaGrade respects the
intellectual property rights of others. If you believe
content located on or linked to by the Website violates
Your copyright, you are encouraged to notify AlphaGrade
in accordance with AlphaGrade’s
Digital Millennium Copyright Act Policy. AlphaGrade
will respond to all such notices, including as required
or appropriate by removing the offending material or
disabling all links to the offending material.
AlphaGrade has adopted a policy that provides for the
immediate suspension and/or termination of any user who
is found to have infringed on the rights of AlphaGrade
or of a third party, or otherwise violated any
intellectual property laws or regulations.
15. DISCLAIMERS; LIMITATION OF LIABILITY
(a) NO WARRANTIES
ALPHAGRADE, ON BEHALF OF ITSELF AND ITS LICENSORS AND
SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE WEBSITE
AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO
THE MAXIMUM EXTENT PERMITTED BY LAW, ALPHAGRADE, ON
BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS,
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE WEBSITE, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
NEITHER ALPHAGRADE NOR ITS LICENSORS OR SUPPLIERS
WARRANTS THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR
REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE OR THE
SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER
ALPHAGRADE NOR ITS, LICENSORS OR SUPPLIERS HAS ANY
LIABILITY WHATSOEVER FOR YOUR USE OF THE WEBSITE OR
SERVICES.
(b) YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
YOU AGREE AND UNDERSTAND THAT YOU MAY BE HELD LEGALLY
RESPONSIBLE FOR DAMAGES SUFFERED BY OTHER ALPHAGRADE
USERS OR THIRD PARTIES AS THE RESULT OF ANY REMARKS,
INFORMATION, FEEDBACK OR OTHER CONTENT POSTED OR MADE
AVAILABLE ON THE WEBSITE THAT IS DEEMED DEFAMATORY OR
OTHERWISE LEGALLY ACTIONABLE. UNDER THE FEDERAL
COMMUNICATIONS ACT OF 1996, ALPHAGRADE IS NOT LEGALLY
RESPONSIBLE, NOR CAN IT BE HELD LIABLE FOR DAMAGES OF
ANY KIND, ARISING OUT OF OR IN CONNECTION TO ANY
DEFAMATORY OR OTHERWISE LEGALLY ACTIONABLE REMARKS,
INFORMATION, FEEDBACK OR OTHER CONTENT POSTED OR MADE
AVAILABLE ON THE WEBSITE.
(c) YOUR RESPONSIBILITY FOR DAMAGE
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS
AT YOUR SOLE RISK. YOU WILL NOT HOLD ALPHAGRADE OR ITS
LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR
ANY DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF
THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY DAMAGE TO
ANY OF YOUR COMPUTERS OR DATA. THE INFORMATION AND
SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER
LIMITATIONS.
(d) LIMITATION OF LIABILITY
THE LIABILITY OF ALPHAGRADE AND ITS LICENSORS AND
SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, IN NO EVENT SHALL ALPHAGRADE OR ITS LICENSORS OR
SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR
CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY,
EMOTIONAL DISTRESS, FAILURE TO MEET ANY DUTY INCLUDING
WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE,
NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE
FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR
NOTICE GIVEN TO ALPHAGRADE OR ITS LICENSORS AND
SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE
OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY
REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF
CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF
ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF
ALPHAGRADE AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER
ALL CIRCUMSTANCES WILL NOT EXCEED THE LESSER OF (A)
AGGREGATE PRICE YOU PAID TO ALPHAGRADE DURING THE YEAR
PRECEDING THE INCIDENT OR INCIDENTS GIVING RISE TO SUCH
LIABILITY OR (B) $50.00. YOU AGREE THAT THIS LIMITATION
OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK
AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN
BETWEEN ALPHAGRADE AND YOU. THE WEBSITE AND SERVICES
WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
(e) APPLICATION
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN
ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY
OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT
BETWEEN YOU AND ALPHAGRADE OR BETWEEN YOU AND ANY OF
ALPHAGRADE’S LICENSORS AND SUPPLIERS. SOME JURISDICTIONS
MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED
WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME
OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF
LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR
MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS,
WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM
EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL
PURPOSE. ALPHAGRADE’S LICENSORS AND SUPPLIERS ARE
INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS,
WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE
WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS
OR LIMITATIONS STATED IN THIS SECTION.
16. GENERAL REPRESENTATION AND WARRANTY
You represent and warrant that Your use of the Website
and Services will be in accordance with this Agreement
and any other AlphaGrade policies, and with any
applicable laws or regulations.
17. INDEMNITY BY YOU
You agree to defend, indemnify and hold harmless
AlphaGrade and its officers, directors, employees,
agents, affiliates, representatives, sublicensees,
successors, assigns, and contractors (collectively, the
“AlphaGrade Parties”) from and against any and all
claims, actions, demands, causes of action and other
proceedings (collectively, “Claims”), including but not
limited to legal costs and fees, arising out of or
relating to: (i) Your breach of this Agreement,
including without limitation any representation or
warranty contained in this Agreement; (ii) any
allegation of defamation, libel, slander, obscenity,
pornography, or violation of the rights of privacy or
publicity; (iii) Your access to or use of the Website or
Services; (iv) Your provision to AlphaGrade or any of
the AlphaGrade Parties of information or other data; or
(v) the release of private data pursuant to a court
order or subpoena.
The AlphaGrade Parties will have the right, but not
the obligation, to participate through counsel of their
choice in any defense by You of any Claim as to which
You are required to defend, indemnify or hold harmless
the AlphaGrade Parties. You may not settle any Claim
without the prior written consent of the concerned
AlphaGrade Parties.
18. GOVERNING LAW; JURISDICTION AND VENUE
The Website, Services, and this Agreement, including
without limitation this Agreement’s interpretation,
shall be treated as though this Agreement were executed
and performed in San Francisco, California and shall be
governed by and construed in accordance with the laws of
the State of California without regard to its conflict
of law principles. ANY CAUSE OF ACTION BY YOU ARISING
OUT OF OR RELATING TO THE WEBSITE, SERVICES, OR THIS
AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER
THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND
BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS
SET FORTH IN ABOVE. The language in this Agreement shall
be interpreted in accordance with its fair meaning and
not strictly for or against either party.
(a) Requirement of Arbitration
You agree that any dispute, of any nature whatsoever,
between You and AlphaGrade arising out of or relating to
the Website, Services, or this Agreement, shall be
decided by neutral, binding arbitration before a
representative of JAMS in San Francisco, California
unless You and AlphaGrade mutually agree to a different
arbitrator, who shall render an award in accordance with
the substantive laws of California. A final judgment or
award by the arbitrator may then be duly entered and
recorded by the prevailing party in the appropriate
court as final judgment. The arbitrator shall award
costs (including, without limitation, the JAMS’ fee) to
the prevailing party, but not attorney’s fees.
(b) Remedies in Aid of Arbitration; Equitable Relief
This agreement to arbitrate will not preclude You or
AlphaGrade from seeking provisional remedies in aid of
arbitration, including without limitation orders to stay
a court action, compel arbitration or confirm an
arbitral award, from a court of competent jurisdiction.
Furthermore, this agreement to arbitrate will not
preclude You or AlphaGrade from applying to a court of
competent jurisdiction for a temporary restraining
order, preliminary injunction, or other interim or
conservatory relief, as necessary. THE PROPER VENUE FOR
ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING
“EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS
LOCATED IN SAN JOSE, CALIFORNIA; THE PARTIES HEREBY
WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL
JURISDICTION OF SUCH COURTS.
19. TERMINATION
(a) By AlphaGrade WITHOUT LIMITING ANY OTHER PROVISION
OF THIS AGREEMENT, ALPHAGRADE RESERVES THE RIGHT TO, IN
ALPHAGRADE’S SOLE DISCRETION AND WITHOUT NOTICE OR
LIABILITY, DENY USE OF THE WEBSITE AND/OR SERVICES TO
ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL,
INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED
BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT
CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR
REGULATION.
(b) Automatic Termination Upon Breach By You
This Agreement shall automatically terminate in the
event that You breach any of this Agreement’s
representations, warranties or covenants. Such
termination shall be automatic, and shall not require
any action by AlphaGrade.
(c) By You
You may terminate this Agreement and Your rights
hereunder at any time, for any or no reason at all, by
providing to AlphaGrade notice of Your intention to do
so, in the manner required by this Agreement.
(d) Effect of Termination
Any termination of this Agreement automatically
terminates all rights and licenses granted to You under
this Agreement, including all rights to use the Website
and Services. Upon termination, AlphaGrade may, but has
no obligation to, in AlphaGrade’s sole discretion,
delete from AlphaGrade’s systems all User Content, Your
Personal Information and any other files or information
that You made available to AlphaGrade or that otherwise
relate to Your use of the Website or Services.
Subsequent to termination, AlphaGrade reserves the right
to exercise whatever means it deems necessary to prevent
Your unauthorized use of the Website and Services,
including without limitation technological barriers such
as IP mapping and direct contact with Your Internet
Service Provider.
(e) Legal Action
If AlphaGrade, in AlphaGrade’s discretion, takes legal
action against You in connection with any actual or
suspected breach of this Agreement, AlphaGrade will be
entitled to recover from You as part of such legal
action, and You agree to pay, AlphaGrade’s reasonable
costs and attorneys’ fees incurred as a result of such
legal action. The AlphaGrade Parties will have no legal
obligation or other liability to You or to any third
party arising out of or relating to any termination of
this Agreement.
(f) Survival
Upon termination, all rights and obligations created by
this Agreement will terminate, except that Sections 1-3,
6-8, 9-18 and 20 will survive any termination of this
Agreement. For clarification, termination of this
Agreement will not relieve You of Your obligation to pay
any fees owed AlphaGrade.
20. GENERAL
(a) Entire Agreement; Amendment
This Agreement constitutes the entire agreement between
AlphaGrade and You concerning Your use of the Websites.
This Agreement and any other written agreements executed
between You and AlphaGrade constitute the entire
agreement concerning Your use of the Services. This
Agreement may only be modified by a written amendment
signed by an authorized executive of AlphaGrade or by
the unilateral amendment of this Agreement by AlphaGrade
and by the posting by AlphaGrade of such amended
version.
(b) Severability; Waiver
If any part of this Agreement is held invalid or
unenforceable, that part will be construed to reflect
the parties’ original intent, and the remaining portions
will remain in full force and effect. A waiver by either
party of any term or condition of this Agreement or any
breach thereof, in any one instance, will not waive such
term or condition or any subsequent breach thereof.
(c) Assignment
This Agreement and all of Your rights and obligations
hereunder will not be assignable or transferable by You
without the prior written consent of AlphaGrade. This
Agreement will be binding upon and will inure to the
benefit of the parties, their successors and permitted
assigns.
(d) Relationship
You and AlphaGrade are independent contractors, and no
agency, partnership, joint venture or employee-employer
relationship is intended or created by this Agreement.
(e) Third-Party Beneficiaries
Except for the AlphaGrade Parties as and to the extent
set forth in Sections 11, 13, 17 and 20(e), and
AlphaGrade’s licensors and suppliers as and to the
extent expressly set forth in Section 15, there are no
third-party beneficiaries to this Agreement.
(f) Irreparable Injury
You acknowledge and agree that any actual or threatened
breach of this Agreement or infringement of proprietary
or other third party rights by You would cause
irreparable injury to AlphaGrade and AlphaGrade’s
licensors and suppliers, and would therefore entitle
AlphaGrade or AlphaGrade’s licensors or suppliers, as
the case may be, to injunctive relief.
(g) Notices
All notices required or permitted to be given under this
Agreement must be in writing. AlphaGrade shall give any
notice by email sent to the most recent email address,
if any, provided by the intended recipient to
AlphaGrade. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING
THAT YOUR EMAIL ADDRESS ON FILE WITH ALPHAGRADE IS
ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED
EFFECTIVE UPON THE SENDING BY ALPHAGRADE OF AN EMAIL TO
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return receipt requested, postage prepaid; or (iii)
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MaGlobe, Inc.
Capitol Professional Bldg.
590 Park Street, Suite 6
St. Paul, MN 55103
All notices to AlphaGrade will be deemed received as
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