Last Updated: November 30, 2012
WELCOME TO OPENSFS.ORG, WHICH IS OWNED AND OPERATED BY OPENSFS (“OPENSFS” “WE,” “US,” OR “OUR”). PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS”) CAREFULLY. BY ACCESSING OR USING THE WEB SITE LOCATED AT WWW.OPENSFS.ORG (THE “SITE”) OR OUR SERVICE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THESE TERMS AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE HEREIN. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS, YOU MAY NOT USE THE SITE OR THE SERVICE. WE SUGGEST YOU PRINT A COPY OF THESE TERMS FOR YOUR RECORDS.
If you are using the Site or the Service on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf, and that such entity agrees to indemnify you and OpenSFS for violations of these Terms. Nothing in these Terms will be deemed to confer any third party rights or benefits.
UPDATES TO TERMS
We reserve the right to change or modify any provisions of these Terms and any policies or guidelines governing your use of the Site and/or the Service, at any time in our sole discretion and without liability to you. Any such changes or modifications will be effective immediately upon posting of revisions on the Site. Your continued use of the Site or the Service following the posting of such changes or modifications constitutes your acceptance thereof. Therefore, you should frequently review these Terms and all applicable policies or guidelines on the Site in order to understand the terms and conditions applicable to your use of the Site and the Service. If you do not agree to any changes or modifications to these Terms or to any applicable policies or guidelines on the Site, your sole recourse is to stop using the Site and the Service.
REVIEWS, COMMENTS, AND OTHER CONTENT
You may post and/or submit reviews, comments, suggestions, ideas, information and/or other content (“Content”) to the Site so long as such Content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. OpenSFS reserves the right (but not the obligation) to remove or edit such Content, but does not regularly review posted Content.
If you do post Content, and unless we indicate otherwise, you grant OpenSFS a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Content throughout the world in any media. You grant OpenSFS and sublicensees the right to use the name that you submit in connection with such Content, if they choose. You represent and warrant that: (i) you own or otherwise control all of the rights to the Content that you post and/or submit; (ii) the Content is accurate; (iii) the use of the Content you post and/or submit does not violate these Terms; and (iv) the Content will not cause injury to any person or entity. OpenSFS has the right but not the obligation to monitor and edit or remove any activity or Content. OpenSFS takes no responsibility and assumes no liability for any Content posted by you or any third party.
You represent and warrant that:
- You are authorized to use and have fees charged to any PayPal account, credit card or debit card number you provide via the Site for any payments due.
- All of your registration and account information is true, accurate and complete.
- You will maintain the security of your password.
- You accept all responsibility for all activity that occurs under your user name.
- Any breach or suspected breach of any of the above representations or warranties may result in immediate termination of your account or suspension of your account without, if applicable, any refund.
In order to create an account, you must be 13 years of age or older. If children between the ages of 13 and 18 wish to use the Site, they must be registered by their parent or guardian. By registering, you represent and warrant that you are 13 years of age or older.
The Site and all content and other materials on the Site, including, but not limited to, the OpenSFS effects, our logo and all designs, text, graphics, logos, icons, images, photographs, audio clips, digital downloads, data compilations, software and the selection and arrangement thereof (collectively, the “Materials”) are our property or that of our licensors or users and are protected by United States and/or international copyright laws.
OpenSFS, the OpenSFS logo and any other product or service names or slogans contained in the Site are trademarks of OpenSFS and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of OpenSFS or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “OpenSFS” or any other name, trademark or product or service name of OpenSFS without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of OpenSFS and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us. Lustre® is a registered trademark of Xyratex Technology, Ltd. Additional information regarding trademarks can be found on the Trademarks page.
LIMITED LICENSE AND RESTRICTIONS
We grant you a limited, non-sublicensable, non-exclusive and revocable license to access and make use of the Site and the Materials solely in accordance with, and subject to, these Terms and any other of our policies as posted on the Site. Except as otherwise expressly permitted by these Terms, you may not: (i) collect, use, copy or distribute any portion of the Site or the Materials; (ii) resell, publicly perform or publicly display any portion of the Site or the Materials; (iii) modify or otherwise make any derivative uses of any portion of the Site or the Materials; or (iv) use the Site or the Materials other than for their intended purposes.
THIRD PARTY SITES AND CONTENT
We may host or provide links to products, Web pages, Web sites and other content of third parties (“Third Party Sites and Content”). The inclusion of any link or the hosting of any content is provided solely as a convenience to our users, including you, and does not imply affiliation, endorsement, approval, control or adoption by us of any Web site or any information or content contained therein. We make no claims or representations regarding, and accept no responsibility for such Third Party Sites and Content, or for the quality, accuracy, nature, ownership or reliability thereof. Users, including you, may use these links and the Third Party Sites and Content contained therein at their own risk. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Web site to which you navigate from the Site.
ADVERTISEMENTS AND PROMOTIONS; THIRD PARTY PRODUCTS AND SERVICES
We may run advertisements and promotions from third parties on the Site or may otherwise provide information or links to third party products or services on the Site. Your business dealings or correspondence with, or participation in promotions of our advertisers and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or promotions or as the result of the presence of such third party advertisers or third party information on the Site.
DISCLAIMER OF WARRANTIES
ALL PRODUCTS, INCLUDING NEW AND USED PRODUCTS PURCHASED THROUGH THE SITE, THE SITE, THE MATERIALS AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE ARE PROVIDED TO YOU ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND, UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING. WE DO NOT WARRANT THAT THE SITE, THE MATERIALS OR ANY SERVICE OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SITE OR THE SERVICE. UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, WE DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SITE, THE MATERIALS AND ANY SERVICE OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING: (I) ANY AND ALL WARRANTIES OF MERCHANTABILITY; (II) ANY AND ALL WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WE KNEW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE AWARE OF ANY SUCH PURPOSE); (III) ANY AND ALL WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE; (IV) ALL WARRANTIES WITH RESPECT TO UPTIME AND DATA ACCURACY; (V) ALL WARRANTIES WITH RESPECT TO ANY AND ALL CONTENT AND RELATED DELIVERIES PROVIDED IN CONNECTION WITH THIS AGREEMENT; AND (VI) THAT THE SITE, THE MATERIALS AND ANY SERVICE OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE WILL OPERATE WITHOUT INTERRUPTION OR ERROR. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO WARRANTIES. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
LIMITATION OF LIABILITY
IN NO EVENT WILL OPENSFS BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF REVENUE, LOSS OF PROFITS, OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE MATERIALS AND ANY SERVICE OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE MATERIALS AND ANY SERVICE OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE EXCEED THE AGGREGATE OF THE NET AMOUNTS RECEIVED BY US FROM YOU, IF ANY, FOR SOLELY YOUR ACCESS TO OR USE OF THE SITE (NOT YOUR PAYMENT FOR ANY SERVICE OR PRODUCTS PROVIDED BY US). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
INDEMNIFICATION AND RELEASE
You will indemnify, defend and hold us and our investors, officers, directors, affiliates, subsidiaries, licensors, partners, licensees, consultants, contractors, agents and employees (collectively, the “Indemnified Parties”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney and expert fees, costs, penalties, interest and disbursements) resulting from any claim (including third party claims), suit, action, or proceeding against an Indemnified Party, whether successful or not, resulting from or arising in connection with: (i) your use of the Site, the Materials and/or the Service; (ii) your conduct; (iii) any breach by you of these Terms (including, but not limited to, any breach of any of your representations or warranties); and/or (iii) any Content you upload to, posted on, create on, transmit through or link from the Site.
Notwithstanding any terms to the contrary in these Terms, we reserve the right, without notice, without liability to you and in our sole discretion, to terminate any of your rights under these Terms (including, but not limited to, your right to use the Site and the Service) and to block or prevent your access to and use of the Site and the Service for any or no reason.
Notwithstanding any terms to the contrary in these Terms, OpenSFS may choose to electronically deliver all communications with you, which may include: (i) email to the email address indicated in your communications with OpenSFS or upon registration with the Site; or (ii) posting messages that are displayed to you when you log in to or access the Site. OpenSFS’s electronic communications to you may transmit or convey information about action taken on your request, portions of your request that may be incomplete or require additional explanation, any notices with respect to modifications to these Terms, any notices required under applicable law and any other notices. You agree to do business electronically with OpenSFS, and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.
NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that anything on the Site infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to Receive Notification of Claimed Infringement:
Address of Designated Agent to Which Notification Should be Sent:
xxx, CA 12345
Telephone Number of Designated Agent: +1 (000) 555-1212
Telephone Number of Designated Agent: +1 (000) 555-1212
E-Mail Address of Designated Agent: firstname.lastname@example.org
To be effective, the notification must be a written communication that includes the following:
- 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 us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has 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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user’s email address in our records, or by written communication sent by first-class mail to a user’s address in our records.
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, OpenSFS has adopted a policy of terminating, in appropriate circumstances and at the sole discretion of OpenSFS, account holders who are deemed to be repeat infringers. OpenSFS may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
These Terms and your use of the Site will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms will be filed only in the state and federal courts located in San Francisco County, California. You hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms. None of your rights or duties under these Terms may be transferred, assigned or delegated by you without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate our rights and duties under these Terms. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. If any provision of these Terms is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by these Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify the Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
If you believe there is a violation of these Terms and you would like to report it to us, please direct the information to email@example.com. Any reports of violations you submit to us, including your identity, may not be kept confidential. In response to your report, we may take actions in accordance with these Terms or other applicable agreements between us and the alleged violator of the Terms, and may pursue other remedies available under all applicable local, state, federal or international laws, regulations, rules, orders and other requirements, now or hereafter in effect. However, we are under no obligation to respond to any reports we receive. Please note that a personal reply to reports you submit to us may not always be possible.