Last Updated Date: October 1, 2010
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU PROVIDE ANY INFORMATION TO FENWICK. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Fenwick reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or FLEX, or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the "Last Updated Date" at the top of the homepage of the Site. By continuing to access or use the Site after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site.
The Site is intended solely for persons who are 18 or older. Any access to or use of the Site by anyone under 18 is expressly prohibited. By accessing or using the Site you represent and warrant that you are 18 or older.
The Site and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Fenwick and its licensors exclusively own all right, title and interest in and to the Site and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or Content.
Subject to your compliance with the terms and conditions of these Terms, Fenwick grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view Content solely for your non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site or Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Fenwick or its licensors, except for the licenses and rights expressly granted in these Terms.
You may submit text, information or other materials to us through the Site ("User Content"). By submitting such User Content to us, you hereby grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Site. We do not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site or you have all rights, licenses, consents and releases that are necessary to grant to us the rights in such User Content, as contemplated under these Terms; and (ii) the User Content will not infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site ("Feedback"). You may submit Feedback by emailing us at info(at)flexbyfenwick.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of Fenwick and you hereby irrevocably assign to Fenwick and agree to irrevocably assign to Fenwick all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Fenwick's request and expense, you will execute documents and take such further acts as Fenwick may reasonably request to assist Fenwick to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
You agree not to do any of the following:
Fenwick will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Fenwick may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Fenwick has no obligation to monitor your access to or use of the Site or Content , but has the right to do so for the purpose of operating the Site, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Fenwick reserves the right, at any time and without prior notice, to remove or disable access to any Content, including User Content, that Fenwick, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site.
Fenwick respects copyright law and expects its users to do the same. Fenwick has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Fenwick's Copyright Policy for further information.
The Site may contain links to third-party website or resources. You acknowledge and agree that Fenwick is not responsible or liable for: (i) the availability or accuracy of such website or resources; or (ii) the content, products, or services on or available from such website or resources. Links to such website or resources do not imply any endorsement by Fenwick of such website or resources or the content, products, or services available from such website or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such website or resources.
Termination and Cancellation
If you breach any of these Terms, Fenwick will have the right to terminate these Terms without prior notice to you. Fenwick reserves the right to revoke your access to and use of the Site and Content at any time, with or without cause.
THE SITE AND CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FENWICK EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FENWICK MAKES NO WARRANTY THAT THE SITE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FENWICK MAKES NO WARRANTY REGARDING THE QUALITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FENWICK OR THROUGH THE SITE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold Fenwick, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site or Content, or your violation of these Terms.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE AND CONTENT REMAINS WITH YOU. NEITHER FENWICK NOR ANY OTHER party involved in creating, producing, or delivering the Site or Content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the SITE OR CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not FENWICK has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
In no event will FENWICK'S aggregate liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE OR CONTENT EXCEED FIFTY DOLLARS ($50). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FENWICK AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Fenwick used herein are trademarks or registered trademarks of Fenwick. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between Fenwick and you regarding the Site and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Fenwick and you regarding the Site and Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Fenwick's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Fenwick may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Fenwick via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Fenwick to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Fenwick. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact Fenwick at info(at)flexbyfenwick.com.