Terms of Service and Online System Access Agreement!
ONLINE SYSTEM ACCESS AGREEMENT
THIS AGREEMENT (the "Agreement") is hereby entered into between CashSurfers, Inc, with offices at 2600 L Street, Bakersfield, CA 93301 (the "Service Provider") and the person executing this Agreement ("You") on the following terms and conditions:
(a) Generally. This Agreement governs Your relationship with the Service Provider, its Third Party Suppliers and Your use of CashSurfers.com, as described more fully in Section 2 ("OnLine Services"). The Agreement is comprised of the provisions that follow and any additional or different terms that may from time to time be implemented under Subsection (b)("Changes to Agreement") by the Service Provider (or by a Third Party Supplier with respect to its own features).
(b) Changes to Agreement. The Service Provider (or applicable Third Party Supplier with respect to its own features) may change or add provisions to this Agreement from time to time in its sole discretion by publishing a notice in the OnLine Service. Any change to this Agreement will be effective upon publication. Your continued use of OnLine Services after the effective date of any amendment to this Agreement will constitute Your acceptance of the amendment. If You do not agree with a proposed change, You may exercise Your termination rights under Section 10 ("Term & Termination").
2. OnLine Services.
(a) Generally. The Service Provider may make available to You certain features, such as file libraries, electronic mail, discussion forums and live chat areas (collectively, "OnLine Services"). The Service Provider may in its sole discretion change, add or discontinue features and access privileges available through the OnLine Services at any time.
(b) Third Party Suppliers. Certain features in the OnLine Service may be provided by Third Party Suppliers hosted on or accessed through a gateway provided by the OnLine Service. Third Party Suppliers may change, add or discontinue a feature at any time without notice. Third Party Suppliers may impose additional surcharges or other terms to this Agreement governing Your use of Third Party Features. They shall be considered third party beneficiaries of this Agreement and may assert or enforce any of the provisions of this Agreement directly on their own behalf. The Service Provider has no direct editorial control over and is not a republisher of content disseminated through the OnLine Service by Third Party Suppliers.
(c) User Content. The OnLine Services are comprised of both Public Areas and Private Mail. Public Areas are those features that are generally accessible to other users, such as file uploads, group electronic mail and contributions to discussion forums and live chat areas. The materials You upload or post to Public Areas are known as "Public Contributions." Private Mail is electronic correspondence sent by You to particular individuals You select.
(i) Regulation of OnLine Conduct. Service Provider is a mere distributor and has no practical ability or responsibility to prescreen or editorially control the content of Public Contributions. Service Provider reserves the right (but does not assume the responsibility) to remove from Public Areas any Public Contribution brought to its attention which it deems detrimental to the OnLine Services or any person. You agree not to make any Public Contribution which violates or infringes the rights of any other person or which a reasonable person would consider abusive, profane or offensive, which is defamatory or harassing, or which violates or encourages others to violate this Agreement or any applicable law. You will not send so-called "chain letters," pornographic or obscene graphic images (e.g., GIF or JPEG), and You will not impersonate Service Provider personnel or disrupt the orderly presentation of content. In order to protect itself, Service Provider may without liability actively cooperate with and furnish identifying and supporting information to any person likely to be harmed by Your violation of these provisions. You also agree not to make Public Contributions that encourage others to become members of competitive information services or advertise products or services other than through channels or areas of the OnLine Service approved by the Service Provider.
(ii) Private Mail. It is Service Provider's policy to respect the privacy of Private Mail. The Service Provider will not intentionally disclose the content of Private Mail to anyone other than the addressee, authorized recipients or to those who provide forwarding or delivery services, without the consent of the sender, the recipient or as required by law. The Service Provider reserves the right to examine Private Mail if it reasonably believes You or another User have violated this Agreement, any applicable law or if disclosure is required by court order or law enforcement authorities. Service Provider may periodically delete unread or archival copies of Private Mail at published intervals and upon termination of an Account. You should make and store offline backup copies of all Private Mail that You wish to preserve.
3. Access to OnLine Services.
(a) Remote Access Software. You may access OnLine Services only through Remote Access Software supplied by the Service Provider. You may not use third party software (including third party "add-ons" or enhancements) to access the OnLine Services without Service Provider's prior written consent.
(b) Remote Access Equipment. You are responsible at Your own expense to obtain, install, configure and maintain equipment to access and use the OnLine Services. You assume all risk for ensuring the ongoing compatibility of remote access equipment with the OnLine Services.
(c) Telecommunications. You may access the OnLine Service through: WWW.CASHSURFERS.COM
(d) Customer Support. You may obtain telephone and/or email hotline support on terms from time to time published. Service Provider is not expected to provide any user level training.
4. Use of OnLine Services.
(a) Authorized Users. You certify that You are not a minor (under the age of 18) and that, to the best of Your knowledge and belief, information provided by You during registration of an Account is truthful, accurate and complete. During registration, You will be assigned a unique Account Number and User ID Number. A secret password for obtaining access to the OnLine Services through Your account will be assigned by the Service Provider or chosen by You. It is Your responsibility to safeguard and protect your User ID Number and password from disclosure or use by others. You will promptly change Your password and notify the Service Provider if You have reason to believe Your account is being accessed or used by others. YOU ARE STRICTLY LIABLE FOR CHARGES POSTED TO YOUR USER ID AND ACCOUNT.
(b) Permitted Uses. Subject to timely payment of applicable Service Charges, You are granted during the Term of this Agreement a non-exclusive, nontransferable, limited license to install any Remote Access Software supplied by Service Provider on the hard disk drive of one (1) single user computer. You may load and execute that Remote Access Software (or compatible software supplied by You if permitted in Section 3(a)("Remote Access Software")) strictly for the purpose of accessing and making "Permitted Use" of the OnLine Services. For these purposes, Permitted Use means to display information derived from the OnLine Service on the screen of one (1) computer or terminal at a time, and to download and store in nonvolatile memory insubstantial parts of such information in machine readable form indefinitely, and to print copies of such information. The information obtained from the OnLine Service may be used for any legitimate purpose which does not threaten to usurp the market for this OnLine Service. In addition, You may download, store, load and execute on your Remote Access Equipment any JAVA applets or similar client-side routines made available by Service Provider for such purpose.
(c) Prohibited Uses. Except as authorized under Subsection (b) ("Permitted Uses"), You may not display, copy, download, store, reproduce, transmit, distribute, resell or otherwise commercially exploit any part of the Remote Access Software or OnLine Services, including any data or information derived from the OnLine Services, in any format or through any technology or media now existing or hereafter developed. You are specifically prohibited from disseminating any part of the OnLine Services, data or information in a manner that potentially would usurp the market for the OnLine Services, including transmittal of copyrighted material through Private Mail or Public Areas of the OnLine Service without the owner's prior authorization. You are also prohibited from using OnLine Services for the purpose of (i) collecting consumer debts, or for determining a consumer's eligibility for (ii) credit; (iii) insurance for personal, family or household purposes, (iv) a government license or benefit, or (v) employment.
(d) No Assignment. You may not assign, transfer, sublicense, rent, lease or loan any of Your rights, nor delegate any of Your obligations under this Agreement and any attempt to the contrary shall be void and a material breach of this Agreement.
5. Price & Payment.
(a) OnLine Services. Unless otherwise specified below or in the applicable online feature, Your access and use of OnLine Services is free of charge. Any exceptions will be billed to You according to notices contained in the OnLine Service.
(b) Payment & Late Charges. Unless otherwise agreed in writing, all charges by Service Provider for OnLine Services (including any Third Party Supplier charges) shall be billed to Your credit card. You will pay all sales, use, value-added, personal property or other governmental tax or levy imposed on the goods or services provided to You (including interest and penalties imposed thereon) other than taxes based on the net income or profits of the Service Provider. If You fail to pay any amount when due, then this Agreement (including any license to software) may, at the Service Provider's option, be suspended or terminated. You agree to pay all costs of enforcement, including reasonable legal fees.
(c) Revenue Share. A certain percentage of revenue generated by the use of the OnLine Services will be paid to each user based on their usage of the OnLine Services. Such percentage will be determined by the Service Provider, in its sole discretion.
(d) Revenue Share Payment. Service Provider will pay each user their portion of the revenue share once they have reached certain minimum limits. The minimum limit for a user located in the United States shall be $20.00 U.S. The minimum limit for all other users shall be $40.00 U.S. Payment will be made at no charge to the users. Payment may be made via check or PayPal. User is responsible for ensuring that address information required for payment is kept up to date. When payments are processed, an e-mail will be sent to each user meeting the stated minimum limits. Such e-mail will contain a special code and a url. The user must enter the special code at the url to confirm such user's address and to receive such user's payment.
6. Certain Proprietary Rights.
(a) Copyrights. You agree that all right, title and interest (including all copyrights and other intellectual property rights) in the OnLine Services and any Remote Access Software supplied by Service Provider belong exclusively to the Service Provider or other owner designated in the OnLine Services. Unless otherwise stated in writing, You obtain a nonexclusive license to install, store, load, execute and display the Remote Access Software supplied by Service Provider on a single CPU for the sole purpose of accessing and using the OnLine Services. You may retain copyright in each Public Contribution made through Your account to the OnLine Service. You grant the Service Provider and its users a royalty free, perpetual, irrevocable non-exclusive license to use, copy, modify, prepare derivative works of and redistribute such Public Contributions (in whole or in part) on a world-wide basis through technologies now existing or hereafter developed. The Service Provider retains exclusive ownership of all "compilation" and "collective work" copyrights in the selection, coordination and arrangement of materials in the OnLine Service as a whole.
(b) Certain Trade Secrets. The OnLine Service and any Remote Access Software supplied by Service Provider are provided to You in machine readable form. You agree not to disassemble, decompile or reverse engineer any of the OnLine Service features or the Remote Access Software. You also agree that any information obtained in violation of this restriction will be confidential information automatically and irrevocably deemed assigned to and owned exclusively by the owner of the original technology. You will at all times use due diligence to safeguard and protect all such confidential and proprietary information.
(c) Identifying Marks. You will ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the Remote Access Software and the OnLine Services (and any data, information or other content obtained from such OnLine Services) remain intact and clearly legible.
7. Force Majeure. The Service Provider is excused from any failure or delay in performance of responsibilities otherwise imposed by this Agreement for any cause beyond its reasonable control. Such causes include, without limitation, fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses and incompatible or defective equipment, software or services not supplied by Service Provider. Nothing herein enlarges any warranty or diminishes any disclaimer provided in Section 8 ("Warranties").
8. Warranties. The following provisions are subject to Section 9 ("Limitation of Remedies & Liabilities").
(a) Noninfringement Warranty.
(i) Service Provider Content. The Service Provider warrants to the best of its knowledge and belief that it has the rights needed to enter into this Agreement and that Permitted Use by You of any Remote Access Software supplied by Service Provider and features in the OnLine Services created by Service Provider ("Service Provider Content") will not infringe or misappropriate any United States copyright, trademark, patent, or the trade secrets of any third persons. If promptly notified of any claim to the contrary, Service Provider shall (i) defend through litigation or obtain through negotiation Your right to continue using the material; (ii) rework the material to make it noninfringing, or (iii) replace the material with functionally equivalent material.
(ii) Third Party Content. The Service Provider is a distributor (and not a publisher) of any features, contributions or content supplied by third party vendors and users to the OnLine Service. It has no more editorial control over such content than does a public library, book store or newsstand. As such, Service Provider is not responsible for screening, policing, editing or monitoring such content. If notified of allegedly infringing, defamatory, damaging, illegal or offensive material, the Service Provider may investigate the allegation and determine in good faith and in its sole discretion whether to remove or request the removal of such material from the OnLine Services. If Service Provider elects to perform (or not to perform) any such activities, it shall be held harmless from all claims so long as it acts in good faith.
(iii) User Content. You warrant that any User Content uploaded by You to the OnLine Service will not infringe or misappropriate any copyright, trademark, patent, or the trade secrets of any third persons, or otherwise violate this Agreement or any applicable law. You will defend, indemnify and hold Service Provider harmless from all liability and expense (including attorney fees) arising from any claim to the contrary and from any breach by You of the provisions of this Agreement regulating User Content. You also agree to have all User Content contributed through Your account screened for software viruses and will use due diligence to remove any viruses capable of being detected with commercially available detection programs.
(b) Software Media. Service Provider warrants the magnetic media on which is recorded any Remote Access Software supplied by it and the Documentation to be free from defects in tangible materials and accuracy of reproduction from the master media. Service Provider will replace at no charge defective original media or Documentation returned to it with proof of payment.
(c) Disclaimer. Except as provided in this Section, You agree that the OnLine Services are provided strictly on an "as is" and "as available" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. You accept all risk concerning suitability, use, performance or nonperformance of the OnLine Services. SERVICE PROVIDER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
9. Limitation of Remedies & Liabilities. The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:
(a) Remedies. You agree that if the Service Provider violates any warranty or other provision of this Agreement, and Service Provider determines that repair or other corrective action is not economically or technically feasible, Your sole and exclusive remedy will be to obtain a refund of amounts paid for any software or equipment that may be the subject of the claim or, otherwise, the charges for OnLine Services paid by You during the previous twelve (12) months. You also agree that legal remedies alone provide inadequate protection of intellectual property rights described in Section 6 ("Certain Proprietary Rights") and that, in addition to other relief, the Service Provider or other owner may go to court in Kern County, California or other court of competent jurisdiction and without necessity of posting bond obtain temporary and permanent injunctions to enforce those rights. You will defend, indemnify and hold Service Provider harmless from all claims and expenses (including reasonable legal fees) arising from any violation by You of this Agreement or applicable law.
(b) Liabilities. SERVICE PROVIDER IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID BY YOU FOR SOFTWARE, EQUIPMENT AND FOR ONLINE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) INCURRED BY YOU, YOUR CUSTOMERS OR ANY THIRD PARTY. FOR PURPOSES OF THIS SUBSECTION, "SERVICE PROVIDER" INCLUDES ALL THIRD PARTY SUPPLIERS AND ANY DISTRIBUTOR, PUBLISHER OR RESELLER FROM WHOM YOU OBTAINED THE ONLINE SERVICES OR OTHER COMPONENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.
10. Term & Termination.
(a) Generally. This Agreement shall continue in full force and effect until terminated by either party upon twenty-four (24) hours' notice. Notwithstanding the foregoing, (i) Service Provider may suspend or terminate this Agreement at any time without notice if You breach any provision of it, and (ii) You may terminate this Agreement at any time if You do not agree to any amendment published under Section 1(b)("Changes to Agreement").
(b) Effect of Termination. Termination of this Agreement will terminate Your right to possess or use any Remote Access Software supplied by Service Provider and to access or use the OnLine Services. Upon termination for any reason, You agree to destroy the original and all copies of such Remote Access Software (including Documentation) and cease all further use of such Remote Access Software and the OnLine Services. Termination will have no effect on payment of amounts due under Section 5 ("Price & Payment"), proprietary rights or obligations under Section 6 ("Certain Proprietary Rights"), indemnifications or disclaimers under Section 8 ("Warranties"), limitations under Section 9 ("Limitation of Remedies & Liabilities") or continuing assurances made under Section 12 ("Export Regulations").
(c) InActive Accounts. Any account which has not been accessed in one year may be subject to termination. The user of such an account will be sent an e-mail regarding such termination and will have a thirty day period from the date of the e-mail to visit the website or the CashBar. If such a visit occurs during the thirty day period, their account will be placed back on active status. Accounts closed for inactivity will be permanently closed and any revenue share may be forfeited, in the sole discretion of the Service Provider.
11. Disputes, Choice of Law. Except actions for certain injunctive relief authorized under Section 9 ("Limitation of Remedies & Liabilities") which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes involving less than ten thousand dollars ($10,000) shall be submitted to a single arbitrator under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be limited to remedies otherwise available in court, shall include a written explanation of the decision and shall be binding upon the parties and enforceable in any court of competent jurisdiction. Disputes involving amounts exceeding the above dollar limit are not subject to arbitration and may be taken directly to court by either party. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND CALIFORNIA, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SUCH DESIGNATED STATE. ANY ACTION OR OTHER PROCEEDING BY YOU SHALL BE INITIATED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE, OR BE BARRED.
12. Export Regulations. The transfer of technology across national boundaries is regulated by the U.S. Government. You agree not to export or re-export (including by transmission) any data or technology derived from the OnLine Service without first obtaining any required export license or governmental approval. This provision and the assurances made herein shall survive termination of this Agreement.
13. U.S. Government Restricted Rights. Any Remote Access Software supplied by Service Provider and the OnLine Services (including Documentation) are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in the Rights in Commercial Computer Software clause at DFARS 227.7202-3 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19, as applicable. The Contractor is CashSurfers, Inc, located at 2600 L Street, Bakersfield, CA 93301.
14. Notice to California Users. Under California Civil Code Section 1789.3, California Users are entitled to the following consumer rights information:
(a) Pricing Information. Current prices and rates for using the OnLine Service may be obtained by calling 661-869-1725 or in writing at 2600 L Street, Bakersfield, CA 93301. The Service Provider reserves the right to change, increase or implement additional fees or prices, as provided in Section 1(b)("Changes to Agreement").
(b) Complaints. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 North Street, Suite 501, Sacramento, California 95814, or by telephone at (916) 445-1254.
15. Miscellaneous. This Agreement constitutes the entire and exclusive agreement between the parties with respect to this subject matter and supersedes all other communications, whether written or oral. This Agreement may be amended as provided in Section 1(b)("Changes to Agreement"). Any other amendment shall require a writing signed by the Service Provider, regardless of any course of conduct or trade practice between the parties. This document and Your signature in electronic form, or a hardcopy duplicate in good form, shall be considered an original document with authenticated signature admissible into evidence unless the document's authenticity is genuinely placed in question. You may issue a purchase order for administrative convenience, but it will have no substantive effect on the terms or conditions of this Agreement. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect.
"Your use of this OnLine Service is governed by and conditioned on your consent to the OnLine System Access Agreement. You have reviewed that Agreement to your satisfaction. By entering your signature below, you agree to be bound by the Agreement, just as if you had signed it in pen and ink.
Enter Signature: ____________________"