Terms of use

Last updated: April 3, 2012

This Terms of Use agreement is in reference to the use of our website. If you wish to review the Terms of Use agreement for use of our ActiveMail® product, please click here.

THIS WEBSITE, www.activepath.com (the “Site”), IS OWNED AND OPERATED BY ActivePath Ltd. (“ActivePath”, “we”, “us” or “our”). ANY USE OF THIS SITE OR THE SERVICES AVAILABLE ON THE SITE FROM TIME TO TIME (including any products, software applications and services provided by us herein – collectively the “Services”), IS SUBJECT TO AND CONDITIONED UPON YOUR ASSENT TO AND COMPLIANCE WITH, ALL OF THE TERMS AND CONDITIONS IN THIS TERMS OF USE AGREEMENT (the “Agreement”).  BY USING THE SITE OR THE SERVICES YOU SIGNIFY YOUR CONSENT TO BE BOUND BY THIS AGREEMENT AND THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS SET FORTH HEREIN, PLEASE DO NOT USE THIS SITE AND DO NOT USE OR ACCESS OUR SERVICES.

We may amend this Agreement at any time by posting the amended terms on the Site. Your continued use of the Site or Services shall constitute your consent to any changes made. If you do not agree to the new or different terms, you should not use the Site or the Services. This Agreement may not be otherwise amended.

The Services

Our Services are described throughout our Site as may be amended from time to time.

If we offer downloads or use of software on the Site, such software (including without limitation any files, APIs and services as well as any and all content included and/or accessible therein, hereinafter collectively the “Software“) may be subject to separate agreements, which shall prevail over any of the terms herein.

Registration

In certain cases you may be required to register to our Site and to provide certain information, including among others, a unique user name and password (“Registration Data”). You agree to provide true, accurate, current and complete Registration Data as prompted by the registration process and to maintain the security and confidentiality of your password and any other security or access information used by you to access the Site and Services. You agree that your user ID and password are personal and non-transferable. You further agree not to impersonate another person in your use of the Site or the sending of any email to an address listed on the Site. You are required to immediately notify us in writing if you become aware of any loss, theft or use by any other of any of your Registration Data in connection with the Site or the Services.

We may for any reason, in our sole discretion and without notice or liability to you or any third party, refuse registration, or immediately suspend or terminate your account and refuse any and all current or future access to and use of the Site and the Services (or any portion thereof) . Grounds for such termination may include, but are not limited to, loss, theft or unauthorized use of your Registration Data, violation of the letter or spirit of this Agreement and/or of the Privacy Policy, providing Registration Data that is inappropriate or offensive in our discretion, if we have reasonable grounds to suspect any of the Registration Data that you provided is inaccurate, not current or incomplete, or extended periods of inactivity.

Eligibility to Use our Services

You may not use the Site and the Services and may not accept this Agreement if (a) you are not of legal age to form a binding contract with ActivePath, or (b) you are a person barred from using the Site or the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Site and /or the Services. Subject to applicable laws, ActivePath may, in its sole discretion, refuse to offer the Site and the Services to any person or entity and change its eligibility criteria at any time.

Electronic Communications

When you visit the Site, fill out forms, or send emails to us, you are communicating with us electronically and you consent to receive communications from us electronically. We may communicate with you by email or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Proprietary Rights

The Site, the Services and the content therein including without limitation the trademarks, logos and service marks that you see on this Site are proprietary to us and/or our licensors. Any and all intellectual property rights embodied and/or attached and/or related to the Services and/or the Site and/or any of the content therein are and shall remain our exclusive property and/or our licensors. Nothing in this Site grants any license or right to use any marks displayed on this Site without the written permission of the owner of the mark. Your misuse of the marks displayed on this Site or any other content on this Site is strictly prohibited.

Compliance with Laws

Access or use of the Internet or of certain websites may be prohibited in certain territories and/or certain restrictions may apply to you in such territories. Don’t access this Site if such access is prohibited under laws applicable to you. You agree that your use of the Site and Services shall not violate any applicable local, national or international law, including but not limited to any regulations having the force of law.

Links to Other Websites

This Site may contain links and references to third party websites. We may, from time to time, at our sole discretion, add or remove links to other websites. These links are provided solely as a convenience to you, and access to any such websites is at your own discretion and responsibility. You are recommended that you review the information provided by third parties (such as, but not limited to, the terms of service and privacy policy of the relevant website) before accessing such websites. We do not review, approve, monitor, endorse, warrant, or make any representations with respect to such websites. In no event will we be responsible for the information contained in such websites, their practices or for your use of or inability to use such websites, or transmissions received from such sites. You expressly relieve us from any and all liability arising from your use of any third-party website.

Site User Generated Content

Some areas of the Site may allow users to post feedback, comments, questions, data, photos, links, files of various types and other information (“User Content”). You are solely responsible for any User Content that you upload, publish, display, link to or otherwise make available (hereinafter, “post”) on the Site. We do not have the resources or the intent to monitor such User Content and merely make such content available without any editing, monitoring or control. Accordingly, we do not review, share, distribute, or reference any such User Content except as provided herein or in our Privacy Policy or as may be required by law. As between ActivePath and its Site users, all such User Content is owned by the user who posted it to the Site.

You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights, rights of publicity and privacy. You understand that publishing your User Content on the Site is not a substitute for registering it with rights organizations if required by law or if otherwise deemed beneficial to you.

ActivePath assumes no responsibility and liability for any User Content that you or any other users or third parties post or send over the Site. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Site, is solely your responsibility. ActivePath is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree that ActivePath shall not be liable for any damages you allege to incur as a result of such User Content.

You are solely responsible for your interactions with other ActivePath Site users. We reserve the right, but have no obligation, to monitor disputes between you and other Site users.

No Warranty

WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS AND SUPPLIERS PROVIDE OUR SITE AND SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT THIS SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, OR ERROR OR VIRUS FREE.

Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.

Limitation of Liability

IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT, HOWEVER ARISING, INCLUDING NEGLIGENCE. Neither ActivePath nor its affiliated or related entities are responsible or liable to any person or entity whatsoever for any direct or indirect loss, damage (whether actual, consequential, punitive, special or otherwise), injury, claim, liability or other cause of any kind or character whatsoever based upon or resulting from any information provided on the Site or from the use of, or the inability to use any content or Services therein. You specifically agree that ActivePath is not liable for any defamatory, offensive, or illegal conduct of any user. If you are dissatisfied with the Site or the Services or any materials thereon, or with these terms and conditions, your sole and exclusive remedy is to discontinue using the Site and Services.

WITHOUT DEROGATING FROM ANY OF THE FOREGOING, OUR TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, IF ANY, IN CONNECTION WITH THE SITE, THE SERVICES, ANY CONTENT HEREIN OR THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT OF $100 USD. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN US AND YOU.

Infringement Notices and Counter-Notices

Infringement Notice

If you believe that your work has been copied in a way that constitutes copyright infringement, you may submit a notification by providing our Copyright Agent with the following information in writing:

  • · A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • · Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  • · Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit ActivePath to locate the material;
  • · Information reasonably sufficient to permit ActivePath to contact you, such as an address, telephone number, and, if available, an electronic mail;
  • · A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • · A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

ActivePath’s designated Copyright Agent to receive notifications of claimed infringement may be contacted at: [legal@activepath.com]. For clarity, only alleged infringement notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to ActivePath’s customer service through [support@activepath.com]. You acknowledge that if you fail to comply with all of the requirements of this section, your infringement notice may not be valid.

 

Counter-Notice

If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use your content, you may send a counter-notice containing the following information to the Copyright Agent:

  • · Your physical or electronic signature;
  • · Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
  • · A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
  • · Your name, address, telephone number, and e-mail address, a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, ActivePath may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at ActivePath’s sole discretion.

Privacy Policy

Information that we collect and use about you is subject to our Privacy Policy located here. By accessing this Site you consent to the collection and use of information as described in our Privacy Policy, as may be amended by us from time to time. You further acknowledge that the Privacy Policy is hereby incorporated by reference into this Agreement.

Governing Law; Dispute Resolution

The laws of New York will govern this Agreement, without regard to its conflict of law principles. Use of our Services is unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement. No provision of the Agreement shall be construed against this Site but rather shall be construed in a neutral and fair manner as terms entered into by a fully-informed party on a voluntary basis after opportunity to confer with advisors and legal counsel about the meaning and effects of the terms hereof.

Any and all legal claims, suits or actions that arise in connection with this Agreement and/or the Site or Services, claimed against us shall be brought exclusively in the courts located in New York, New York. You agree that this Site shall be deemed a passive website that does not give rise to personal jurisdiction over ActivePath, either specific or general, in jurisdictions other than New York.

Limitation of Claims

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Waiver and Severability

The failure of ActivePath to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any of the provisions of this Agreement are held invalid, unenforceable, or void by a court or other tribunal of competent jurisdiction, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.