BY USING THE SERVICE, OR DOWNLOADING, INSTALLING, ACTIVATING OR USING ANY MATERIALS AVAILABLE THROUGH THE SITE, YOU ARE AGREEING THAT YOU HAVE READ, AND AGREE TO COMPLY WITH AND BE BOUND BY, THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION AS WELL AS RED CHEETAH'S PAYMENT AND REFUND POLICIES AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND RED CHEETAH'S PAYMENT AND REFUND POLICIES AND TO FOLLOW ALL APPLICABLE LAWS, DO NOT ACCESS OR USE THE SERVICE.
1. License Grant
Subject to the terms and conditions of this Agreement, Red Cheetah hereby grants you a limited, non-exclusive, non-transferable, license to access and use the Service solely on a server controlled by Red Cheetah and solely for your own purposes. The license granted herein is expressly conditioned on your continued compliance with the terms and conditions of this Agreement.
2. Restrictions on License Grant
Your use of the Service is limited to the scope of the license granted in this Agreement and this Agreement does not permit you to use the Service other than as provided herein. You acknowledge that the Service constitutes valuable trade secrets and/or the confidential information of Red Cheetah or its licensors. You acknowledge and agree that except as otherwise authorized under this Agreement or otherwise specified in writing between the parties:
Because of the difficulty associated with quantifying damages, in addition to any other damages to which Red Cheetah may be entitled, if actual damages cannot be reasonably calculated then you agree to pay Red Cheetah liquidated damages of $250 for each violation of this Section 2 or the maximum liquidated damages permitted under law, whichever is greater; otherwise you agree to pay Red Cheetah's actual damages, to the extent such actual damages can be reasonably calculated.
3. Your Obligations
You are responsible for all activity occurring when the Service is accessed through your password and you shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Red Cheetah immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Red Cheetah immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you; (iii) notify Red Cheetah when you no longer require access to the Service; and (v) keep all of your profile information current. You are also solely and exclusively responsible for providing and maintaining all computer hardware, telephone and other equipment necessary to operate the licensed Service and the internet service required to access the Service over the Internet. Red Cheetah shall have no responsibility for the procurement, operation or compatibility of your hardware or capabilities of your internet service provider.
4. Intellectual Property Ownership
All right, title and interest in the Service and the Site, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to Red Cheetah or its licensors, and you shall have no rights whatsoever in any of the foregoing. You acknowledge that the Service constitutes a valuable trade secret and/or is the confidential information of Red Cheetah or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Service, in whole or in part. All content and materials included as part of the Service, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the "Works") are the property of Red Cheetah or its content suppliers and is protected by copyrights, trademarks, trade secrets, or other proprietary rights and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Works are copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and Red Cheetah owns a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Works, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to this Agreement may cause Red Cheetah and its licensors irreparable injury, which may not be remedied at law, and you agree that Red Cheetah and its licensors' remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
The RED CHEETAH name and logo, the OUTPOST name and logo, and other related names, design marks, product names, feature names and related logos are trademarks of Red Cheetah and may not be used, copied or imitated, in whole or in part, without the express prior written permission of Red Cheetah. In addition, the look and feel of the Service (including all page headers, custom graphics, button icons, and scripts) constitutes the service mark, trademark and/or trade dress of Red Cheetah and may not be copied imitated or used, in whole or in part, without the express prior written permission of Red Cheetah.
6. Term; Termination; Suspension of Service
The term of this Agreement commences on your first use of the Service and continues through any subsequent use of the Service thereafter. Any unauthorized use of the Service will be deemed a material breach of this Agreement. Red Cheetah, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement or Red Cheetah's then-current payment or refund policies. In addition, Red Cheetah may terminate a free account at any time in its sole discretion. If Service is suspended, whether for non-payment or any other reason, in order to reinstate service, you must re-subscribe to the Service, including the payment of any fees required to be paid by a new subscriber.
7. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity. If you do not have such authority, you must immediately stop using the Service.
You shall defend, indemnify and hold Red Cheetah harmless from and against any and all losses, damages, liabilities, costs, judgments, charges and expenses, including reasonable attorneys' fees, arising out of or relating to any act or omission by you with respect to (i) your use of the Service or (ii) your breach or violations of this Agreement.
9. Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SERVICE IS PROVIDED "AS-IS" AND "WITH ALL FAULTS", AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RED CHEETAH, INCLUDING ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUBCONTRACTORS, DISTRIBUTORS, SERVICES PARTNERS, AGENTS AND MARKETING PARTNERS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE " RED CHEETAH PARTY(IES)") DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICE, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND ACCURACY AND NON-INTERFERENCE; (B) NEITHER RED CHEETAH NOR ANY RED CHEETAH PARTY WARRANTS THAT (i) THE SERVICE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS, (ii) THE SERVICE WILL MEET YOUR REQUIREMENTS, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; (C) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF RED CHEETAH'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) RED CHEETAH AND THE RED CHEETAH PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE FORMS, DATA, REPORTS, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY YOU FROM ACCESSING AND/OR USING THE SERVICE OR OTHERWISE RELATING TO THIS AGREEMENT, AND (E) USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK AND NEITHER RED CHEETAH NOR ANY OF THE RED CHEETAH PARTIES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY THEREFOR.
10. Interruption of Service
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICE, INCLUDING, THE PUBLIC TELEPHONE, COMPUTER NETWORKS AND THE INTERNET OR TO TRANSMIT INFORMATION, WHETHER OR NOT SUPPLIED BY YOU OR RED CHEETAH, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT THE ACCESS TO AND/OR THE USE OR OPERATION OF THE SERVICE. NEITHER RED CHEETAH NOR ANY OF THE RED CHEETAH PARTIES SHALL BE LIABILE FOR ANY INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO AND/OR USE OF THE SERVICE.
11. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL RED CHEETAH BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOOD WILL, EVEN IF RED CHEETAH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. RED CHEETAH SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST YOU BY THIRD PARTIES. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF RED CHEETAH IN CONNECTION WITH THE SERVICE AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF THE PAYMENTS MADE TO RED CHEETAH FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM IN THE SIX (6) MONTHS PRIOR TO SUCH CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICE MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. YOU ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE REMEDIES FAIL THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, YOU WOULD HAVE PAID A HIGHER FEE FOR THE SERVICE PROVIDED HEREUNDER. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
12. Account Access
Where use of the Service is contingent on you and your users accessing an "account" and/or inserting a "user-identification" and/or "password", you agree that you will be solely responsible for the user-ids and passwords that are provided to you (as such passwords may be changed from time to time in accordance with features of the Service) to log-in to the password protected Service. If non-authorized individuals have access to your systems or to your users' user-id and password, they may be able to use the Service. You and your users shall keep any correspondence you receive relating to or through the use of the Service (including, but not limited to, your user-id, passwords, and other registration or sign-in information) confidential and in a safe place and not disclose it to any third party. You will be responsible and liable for all communications and actions that take place through the use of your user-ids, including without limitation, any actions that occur without your authorization. Accordingly, it is your responsibility to take appropriate actions immediately if any password has been stolen, leaked, compromised or otherwise used without proper consent.
13. Local Laws and Export Control
You acknowledge that the Service, which may include technology and software, may be subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of the country in which the Service is rendered and/or received. You agree to abide by those laws and regulations. You are solely responsible for obtaining any specific licenses relating to the export of software if a license is needed. Red Cheetah's agreement to provide the Service is contingent upon the issuance of any applicable export license required by the United States Government. Red Cheetah is not liable for delays or failure to deliver Service or a product resulting from your failure to obtain such license or to provide such certification.
Red Cheetah may give notice by means of a general notice via the Service, electronic mail to your e-mail address on record in Red Cheetah's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Red Cheetah's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Red Cheetah (such notice shall be deemed given when received by Red Cheetah) at any time by any of the following: letter sent by confirmed facsimile to Red Cheetah at the following fax number: (512) 853-6495; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Red Cheetah Software, LP, 9442 Capital of Texas Hwy North, Suite 900, Austin, Texas 78759, ATTN: President.
15. Modification to Terms
Red Cheetah reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
16. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Red Cheetah but may be assigned without your consent by Red Cheetah to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a Competitor of Red Cheetah directly or indirectly owning or controlling 50% or more of you shall entitle Red Cheetah to terminate this Agreement for cause immediately upon written notice.
17. Customer Communications; Disclosure
From time-to-time Red Cheetah may ask whether or not you wish to receive marketing and other non-critical Service-related communications. You may elect not to receive such communications at that time or opt-out of receiving such communications at any subsequent time by notifying Red Cheetah. Because the Service is a hosted, online application, Red Cheetah may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. Red Cheetah reserves the right to disclose that you are a user of the Service.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to firstname.lastname@example.org or call Red Cheetah at (866) 878-9257.