PLEASE READ CAREFULLY BEFORE USING THIS SOFTWARE: By clicking on the appropriate button, You are indicating that You agree to be bound by the provisions of these Terms of Service (these “Terms“). If You do not wish to be bound by these Terms, please exit the installation process and do not download, install, copy or use the Software or the Site.
Documentation means the user information located at [ www.onpage.com ].
IP Rights means (i) patents, pending patent applications, designs, trademarks and trade names (whether registered or unregistered), copyright and related rights, database rights, know how and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals in relation to any such rights.
ONPAGE means the ONPAGE priority messaging application.
ONPAGE Corp. means OnPage Corporation and its Affiliates. An Affiliate means a company which controls, is controlled by, or is under common control with OnPage Corporation.
Password means a code You select, which, in combination with the User ID, gives You access to Your User Account.
Service means any ONPAGE Corp service provided to You in conjunction with the Software.
Site means this ONPAGE website.
Software means the ONPAGE software licensed under these Terms to You.
Terms of Services means these Terms of Service.
User Account means the account with User ID and Password that You create for Your use of the Software.
User ID means an identification code You select, which in combination with the Password, gives access to Your User Account.
You means you, the end user of the Software.
License and Services
2.1 Subject to these Terms, ONPAGE Corp. hereby grants You a limited, personal, revocable, non-exclusive, non-sublicensable, non-transferable, license to access and use the Site. ONPAGE Corp. may offer a free User Account. ONPAGE Corp. reserves the right, at any time, to change or impose fees for access to and use of the Site, including the Software and/or the Services made available through the Site.
2.2 Your access to the Site is conditional upon your acceptance of these Terms, and your payment of license fees, if any, and any additional terms and conditions that you agree to be bound by from time to time.
2.3 Except as ONPAGE Corp. specifically agrees in writing, You shall be solely responsible for the selection, implementation, and performance of any and all third party equipment, software and telecommunication equipment and services, with which you choose to access the Site.
2.4 The use of the Services requires You to be a registered ONPAGE user and to open a User Account. You can register for a User Account at [www.OnPage.com ]. You shall maintain your User ID and Password in confidence and shall not permit third parties to use your User ID or Password.
Your use of the Site, Software and Service: You agree that:
3.1 You will use the Site, Software and Service only in accordance with these Terms and the Documentation. You affirm that you are over the age of 13. If you are under 13 years of age, then please do not use the Site, Software or Service.
3.2 You will ensure that any information that you provide to ONPAGE Corp. is true, accurate, current and complete.
3.3 You will not use or permit any other person to use the Site, Software or Service to transmit harassing, abusive, libelous, illegal or deceptive messages or information, or unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for products or services.
3.4 You will not use or permit any other person to use the Site, Software or Services to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts;
3.5 You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Site or Software or Your entitlement to use the Services.
3.6 You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site or Software or any part thereof except to the extent permitted by law.
3.7 You will cooperate with ONPAGE CORP. and provide information requested by ONPAGE CORP. to assist ONPAGE CORP. in investigating or determining whether there has been a breach of these Terms and provide ONPAGE CORP. with access to the premises and device where the Site, Software or Services have been used. ONPAGE CORP. will have the right to investigate and prosecute violations of these Terms, including intellectual property rights infringement, to the fullest extent of the law. ONPAGE CORP. may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that ONPAGE CORP. has no obligation to monitor Your access or any user’s access to or use of the Site, Software or Services, but has the right to do so for the purpose of operating the Site, Software and Services, to ensure users’ compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. BY UTILIZING THE SITE, SOFTWARE AND/OR SERVICES, YOU CONSENT TO ALLOW ONPAGE CORP. TO ACCESS ANY INFORMATION IN YOUR ACCOUNT.
4.1 Exclusive Ownership: Any and all IP Rights, including patents, copyright, trademark, trade secrets, and other IP rights, in the Site, Software and the Documentation are and shall remain the exclusive property of ONPAGE CORP. and/or its licensors. You do not acquire hereby any IP Rights or rights in any confidential information or trade secrets, in or relating to the Site, Software or Services, or any part thereof. You are entitled only to the limited use of the IP Rights granted to You in these Terms. You will not take any action to jeopardize, limit or interfere with ONPAGE CORP.’s IP Rights. Any unauthorized use of ONPAGE CORP.’s IP Rights is a violation of these Terms as well as a violation of intellectual property laws, regulations and treaties.
4.2 No Removal of Notices: You shall not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or ONPAGE CORP.’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
You acknowledge and agree that ONPAGE CORP. developed the Software at considerable time and expense. The Software is confidential to and contains trade secrets of ONPAGE CORP.. You agree to maintain the Software in strict confidence and not to disclose or provide access thereto to any person except to those persons with a need for access to exercise the license rights conferred to You under these Terms.
Term and Termination
7.1 Effective Date. These Terms shall be effective when You agree to be bound by these Terms, as manifested by Your clicking on the appropriate button.
7.2 Termination for Breach. If You breach any provision of these Terms, ONPAGE CORP. may, in addition to all other rights and remedies provided by these Terms or by law, terminate your permission to use the Software, Site and/or Services. ONPAGE CORP. will have the right to terminate Your right to use the Software, Site and/or Services if
(a) You fail to comply with or perform a term or condition herein, including the failure to pay any Service or license fees when due;
(b) You interfere with ONPAGE CORP.’s customer service or business operations, or
(c) You materially contravene any agreement that You may have with ONPAGE CORP., including without limitation, these Terms, any other policy of ONPAGE CORP. applicable to Your use of the Software, Site and/or Services, [ www.onpage.com ], or otherwise.
7.3 Termination Without Breach. In addition, ONPAGE CORP. may terminate your right to use the Software, Site and/or Services without any liability whatsoever to You if
(a) ONPAGE CORP. is prevented from providing any portion or all of the Services by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body, or
(b) The provider of the technology used in conjunction with the handheld device ceases to make the technology available to users of the ONPAGE CORP. Software
7.4 Upon termination of Your rights as provided in this Section, You will cease all use of the Site and Software and ONPAGE CORP. shall cease to provide the Services.
7.5 ONPAGE CORP. shall not have any liability to You arising from or related to the termination of these Terms in accordance with this Section.
You shall defend, indemnify, and hold harmless ONPAGE CORP., ONPAGE CORP.’s licensors, successors, affiliates, agents and assigns (each a “ONPAGE CORP. Indemnified Party”) from any claims, damages, losses, or expenses (including attorneys’ fees and costs) incurred by any ONPAGE CORP. Indemnified Party in connection with all claims, suits, judgments and causes of action (i) for infringement of patents or other intellectual property or proprietary rights arising from combining with or using any device, system or service in connection with the Software or any portion thereof, (ii) for damages arising from Your breach of these Terms, (iii) for libel, slander, defamation or infringement of any third party IP Right with respect to material transmitted by You using the Software or Services. No remedy herein conferred upon ONPAGE CORP. is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative.
DISCLAIMER OF WARRANTIES
9.1 THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SOFTWARE IS WARRANTED FOR 30 DAYS AFTER THE DATE OF REGISTRATION OF YOUR ACCOUNT. ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY OR COMPLETENESS, SATISFACTORY QUALITY, AND QUIET ENJOYMENT, OR OTHER WARRANTIES OR CONDITIONS ARISING BY STATUTE, OPERATION OR LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE ARE HEREBY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO USER. ONPAGE CORP. DOES NOT WARRANT THAT THE USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WILL BE TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME. THIS WARRANTY DISCLAIMER IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND ONPAGE CORP.. ONPAGE CORP. WOULD NOT PROVIDE THE SOFTWARE OR SERVICES ABSENT SUCH DISCLAIMER. NO REPRESENTATIONS OR WARRANTIES ARE MADE BY ANY OF ONPAGE CORP.’S LICENSORS UNDER OR BY VIRTUE OF THESE TERMS. THERE ARE NO SERVICE LEVEL GUARANTEES WHATSOEVER IN RESPECT OF THE SOFTWARE OR SERVICE.
9.2 YOU ACKNOWLEDGE AND AGREE THAT ONPAGE CORP. AND ITS LICENSORS CANNOT TRANSMIT DATA VIA THE SOFTWARE IF THE HANDHELD DEVICE IS UNREACHABLE (i.e. OUT OF CELLULAR COVERAGE, POWERED OFF, ETC.). ONPAGE CORP. WILL ATTEMPT TO TRANSMIT DATA FOR UP TO EIGHT (8) HOURS. THE SOFTWARE AND SERVICES ARE NOT A GUARANTEED MEANS OF NOTIFICATION.
LIMITATION OF LIABILITY
IN NO EVENT SHALL ONPAGE CORP. BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS, LOST DATA, LOST PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHER THEORY, EVEN IF ONPAGE CORP. WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF ONPAGE CORP. ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNT PAID TO ONPAGE CORP. IN RESPECT OF THE SOFTWARE OR SERVICES GIVING RISE TO THE CLAIM. ONPAGE CORP. SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SOFTWARE OR SERVICE.
ONPAGE CORP. may assign its rights and obligations under these Terms without notice to You. You shall not assign your rights or obligations under these Terms without the prior written consent of ONPAGE CORP. (such consent may be withheld or conditioned at ONPAGE CORP.’s discretion) and any assignment without ONPAGE CORP.’s prior written consent shall be null and void and of no effect.
All notices required under these Terms will be given as follows: (a) in the case of notices to ONPAGE CORP., by certified mail, return receipt requested, to the following address: ONPAGE Corp. Technology, Inc., 460 Totten Pond Road, Waltham, MA 02451, such notice to be deemed effective upon receipt by ONPAGE CORP.; and (b) in the case of notices to ONPAGE CORP. may deliver notices to you by e-mail to the e-mail address that You provided to ONPAGE CORP. upon registering for the Services, such notice to be deemed effective upon the earlier of (i) twenty-four (24) hours after transmission, or (ii) Your actual receipt of any such e-mail.
Notwithstanding any other provision of these Terms, neither party shall be deemed in default of these Terms for failure to fulfill its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing nonperformance of any obligation by either party to make payment to the other party under these Terms.
The Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software as well as end-user, end-use and destination restrictions issued by national governments.
15.1 No Third Party Beneficiaries. Except as otherwise specifically stated in these Terms, the provisions herein are for the benefit of the You and ONPAGE CORP. and not for any other person or entity.
15.2 No Waiver. Waiver by You or ONPAGE CORP. of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default.
15.3 Survival.The terms, conditions and warranties contained in these Terms that by their sense and context are intended to survive the performance hereof by either or both parties shall so survive the completion of performance, cancellation or termination of these Terms.
15.4 Governing Law and Dispute Resolution. These Terms is to be construed under the laws of the Commonwealth of Massachusetts, excluding any body of law governing conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to these Terms. Any disagreement or dispute arising out of or relating to these Terms, or the breach thereof which the parties are unable to resolve after good faith negotiations, shall be submitted first to the upper management level of the parties. You and ONPAGE CORP., through our respective upper management level representatives shall meet within thirty (30) days of the dispute being referred to them and if we are unable to resolve such disagreement or dispute within thirty (30) days of meeting, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in Waltham, Massachusetts in accordance with the Commercial Rules of the American Arbitration Association. You and ONPAGE CORP. shall each appoint one arbitrator, and the two arbitrators shall jointly appoint a third arbitrator. You and ONPAGE CORP. shall each bear one half of the costs associated with the arbitration proceedings.
15.5 Severability. If a provision of these Terms is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Terms, but rather (unless a failure of consideration would result therefrom) the entire Terms shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of each party shall be construed and enforced accordingly.
15.6 Entire Agreement. These Terms constitute the entire agreement between You and ONPAGE CORP. with respect to the subject matter hereof. You acknowledge that You have not relied on any statements or representations made by or on behalf of ONPAGE CORP. in agreeing to enter into these Terms. ONPAGE CORP. reserves the right to make changes to these Terms by providing You with reasonable notice of the change by either e-mail (as contemplated by the Notice provision above) or by posting notice of the change at [www.OnPage.com]. If You continue to use the Site or Software more than sixty (60) days after notice of the change has been given, You shall be deemed to have accepted