Welcome to the On-Disk.com web site, which is located at
On-Disk.com
(the "Web Site"). The following Terms of Service ("TOS") contain the
terms and conditions that govern your use of the Web Site and
On-Disk.com Service (as defined below). These TOS describe your rights
and responsibilities and what you can expect from the On-Disk.com
Service. If you do not read, understand, and agree to all of the TOS,
you may not use the Web Site.
On-Disk.com reserves the right to add to, delete or change these TOS
because of frequent changes in Internet technology and applicable law.
As such, you should check these TOS from time to time for such changes.
1. The On-Disk.com Service. On-Disk.com
provides a number of
Internet-based services through the Web Site (all such services,
collectively, the "On-Disk.com Service"). These Services include
processing of software (collectively, "Products").
1.1 Services. One such service enables
users to purchase a pre-configured Software set and have it burned to a
Disk (collectively, "Products"). On-Disk.com users may also request
software that must be downloaded. Please See 4.3, below, for further
details. On-Disk.com allows all users to browse the Web Site and
purchase Products. On-Disk.com may offer a number of other services on
its Web Site, such as message boards, contests, and newsletters, which
may change from time to time.
1.2 Selling Products. Users who would
like to sell their Products through On-Disk.com must also enter into
the Developers Agreement.
2. Use of the Web Site and On-Disk.com Service.
2.1 Eligibility. On-Disk.com will only
knowingly provide the On-Disk.com Service to parties that can lawfully
enter into and form contracts under applicable law. If you are under
the age of 18, but at least 13 years of age, you may use the
On-Disk.com Service only under the supervision of a parent or legal
guardian who agrees to be bound by these TOS. The On-Disk.com Service
is not intended for children under the age of 13.
2.2 Compliance With TOS and Applicable
Law. You must comply with all of the terms and conditions of these
TOS,
the applicable agreements and policies referred to below, and all
applicable laws, regulations and rules when you use the On-Disk.com
Service and the Web Site.
2.3 Your License to Use the Web Site and the On-Disk.com Service.
(a)
On-Disk.com solely and exclusively owns all intellectual property and
other right, title and interest in and to the On-Disk.com Service and
Web Site, except as expressly provided for in these TOS. For example
and without limitation, On-Disk.com owns the trademarks, On-Disk.com,
On-Disk.com & Design; the copyrights in and to the Web Site, and
certain technology used in providing the On-Disk.com Service. You will
not acquire any right, title or interest therein under these TOS or
otherwise.
(b)
On-Disk.com grants you a limited revocable license to access and use
the Web Site and the On-Disk.com Service for its intended purposes,
subject to your compliance with these TOS. This license does not
include the right to collect or use information contained on the Web
Site for purposes prohibited by On-Disk.com; create derivative works
based on the content of the Web Site; or download or copy the Web Site
(other than page caching). If you use the Web Site in a manner that
exceeds the scope of this license or breach this TOS, On-Disk.com may
revoke the license granted to you.
2.4 Third-Party Products and Services.
On-Disk.com may sublicense the rights that you grant it in this Section
to a third party subcontractor only for purposes of producing your
Products. On-Disk.com may use third parties to provide certain services
accessible through the Web Site. On-Disk.com does not control those
third parties or their services, and you agree that On-Disk.com will
not be liable to you in any way for your use of such services. These
third parties may have their own terms of use and other policies. You
must comply with such terms and policies as well as these TOS when you
use these services. If any such terms or policies conflict with
On-Disk.com's TOS, agreements or policies, you must comply with
On-Disk.com's TOS, agreements or policies, as applicable.
3. General Rules.
3.1 Prohibited Use. Except as may be
expressly permitted by On-Disk.com, you may not: (i) interfere with the
On-Disk.com Service by using viruses or any other programs or
technology designed to disrupt or damage any software or hardware; (ii)
modify, create derivative works from, reverse engineer, decompile or
disassemble any technology used to provide the On-Disk.com Service;
(iii) use a robot, spider or other device or process to monitor the
activity on or copy pages from the Web Site, except in the operation or
use of an internet "search engine", hit counters or similar technology;
(iv) collect electronic mail addresses or other information from third
parties by using the On-Disk.com Service; (v) impersonate another
person or entity; (vii) use any meta tags, search terms, key terms, or
the like that contain On-Disk.com's name or trademarks; (viii) engage
in any activity that interferes with another user's ability to use or
enjoy the On-Disk.com Service; or (ix) assist or encourage any third
party in engaging in any activity prohibited by these TOS.
3.2 Privacy Policy. By entering into
these TOS, you agree to On-Disk.com's collection, use and disclosure of
your personal information in accordance with the Privacy
Policy.
3.3 Ordering Policies. If you purchase
Products, you agree to do so in accordance with On-Disk.com's Ordering
Policy an Bulk Order Policy.
4. Custom Downloads.
4.1 Description. As part of the
On-Disk.com Service, On-Disk.com offers a service ("Custom Downloads")
that allows you to supply a download URL to the Web Site to create,
produce and purchase Products featuring the Content for your own use or
sale.
4.2 Delivery of Content. You will
provide locations to On-Disk.com all Content that you want to use with
the Custom Downloads Service in accordance with the applicable
instructions on the Web Site. On-Disk.com may, in its sole and
exclusive discretion, determine whether any Content complies with such
instructions and is satisfactory for use with the Custom Downloads
Service.
4.3 Limitations to Custom Downloads
service. On-Disk.com is not responsible for software, technical
support
for software, or documentation on using any software obtained from
On-Disk.com All inquires as to the nature of any listed software, any
problems to your system caused by the software, and information about
properly installing or using the software are the responsibility of
you, the "end user" and the individual software manufacturers. On-Disk
(i) will not download files or programs that are not freely available
for download on the Internet. (ii) On-Disk will not send you pirated
programs or files from warez or other illegal sites. (iii) On-Disk will
download and ship disks containing programs where you have
username/password access or a direct link to download software you have
purchased. When in doubt we may require a copy of the receipt and
verification from the vendor that you have indeed purchased the product.
5. Reservation of Rights.
5.1 Monitoring. On-Disk.com reserves the
right, but does not assume the obligation, to monitor transactions and
communications that occur through the Web Site. If On-Disk.com
determines, in its sole and absolute discretion, that you or another
On-Disk.com user will breach a term or condition of these TOS or that
such transaction or communication is inappropriate, On-Disk.com may
cancel such transaction or take any other action to restrict access to
or the availability of any material that may be considered
objectionable, without any liability to you or any third party.
5.2 Modification of the Service.
On-Disk.com may modify the On-Disk.com Service at any time with or
without notice to you, and will incur no liability for doing so.
6. Submissions. When you submit
questions, comments, suggestions,
ideas, message board postings, material submitted via web forms,
contest entries, communications or any other information
("Submissions"), you grant On-Disk.com permission to use such
submissions for marketing and other promotional purposes. You agree
that On-Disk.com will have no obligation to keep any Submissions
confidential and you will not bring a claim against On-Disk.com based
on "moral rights" or the likes arising from On-Disk.com's use of a
Submission. This Section does not apply to your Content that you use in
connection with the Custom Download Service or Developers Portal
Service.
7. Representations and Warranties.
7.1 Mutual Representations and
Warranties. You represent and warrant to On-Disk.com and
On-Disk.com
represents and warrants to you: (i) that you or it has the full power
and authority to enter into and perform under these TOS, (ii) the
execution and performance of your or its obligations under these TOS do
not constitute a breach of or conflict with any other agreement or
arrangement by which you or it is bound, and (iii) these TOS are a
legal, valid and binding obligation of the party entering into these
TOS, enforceable in accordance with their terms and conditions.
7.2 By You. You represent and warrant to
On-Disk.com that, in your use of the On-Disk.com Service, you: (i) will
not infringe the copyright, trademark, patent, trade secret, right of
privacy, right of publicity or other legal right of any third party and
(ii) will comply with all applicable laws, rules, and regulations. You
further represent and warrant to On-Disk.com that: (i) there are no
claims, demands or any form of litigation pending or, to the best of
your knowledge, threatened with respect to any of your Content; (ii)
On-Disk.com will not be required to make any payments to any third
party in connection with its use of your Content, except for the
expenses that On-Disk.com incurs in providing the On-Disk.com Service;
(iii) the use of any instructions, formulae, recommendations, or the
like contained in your Content will not cause injury to any third
party; and (iv) your Content does not contain viruses or any other
programs or technology designed to disrupt or damage any software or
hardware.
8. Disclaimers, Exclusions, and Limitations.
8.1 DISCLAIMER OF WARRANTIES. WEBPATH
TECHNOLOGIES PROVIDES THE WEB SITE AND ON-DISK.COM SERVICE ON AN "AS
IS" AND "AS AVAILABLE" BASIS. ON-DISK.COM DOES NOT REPRESENT OR WARRANT
THAT THE WEB SITE, ON-DISK.COM SERVICE OR ITS USE: (i) WILL BE
UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL
MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR
WITH THE HARDWARE OR SOFTWARE YOU USE. ON-DISK.COM MAKES NO WARRANTIES
OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY
AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
8.2 EXCLUSION OF DAMAGES. ON-DISK.COM
WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES
RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT
OF, RELATING TO OR CONNECTED WITH THE USE OF THE ON-DISK.COM SERVICE,
BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
8.3 LIMITATION OF LIABILITY. EXCEPT FOR
A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR
IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO
EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOS
EXCEED THE GREATER OF (i) THE AMOUNT PAID BY ON-DISK.COM TO YOU DURING
THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH
LIABILITY OR (ii) $100.
9. Indemnification. You must indemnify and
hold On-Disk.com and its
employees, representatives, agents, affiliates, directors, officers,
managers and shareholders (the "Parties") harmless from any damage,
loss, or expense (including without limitation, attorneys' fees and
costs) incurred in connection with any third-party claim, demand or
action ("Claim") brought against any of the Parties alleging that you
have breached any of these TOS. If you have to indemnify On-Disk.com
under this Section, On-Disk.com will have the right to control the
defense, settlement, and resolution of any Claim at your sole expense.
You may not settle or otherwise resolve any Claim without On-Disk.com's
express written permission.
10. Termination.
10.1 Termination. On-Disk.com may
suspend or terminate your use of the Web Site or On-Disk.com Service if
it believes, in its sole and absolute discretion, that you have
breached a term of these TOS.
10.2 Survival. These TOS will survive
indefinitely unless and until On-Disk.com chooses to terminate them.
10.3 Effect of Termination. If you or
On-Disk.com terminates your use of the Web Site or the On-Disk.com
Service, On-Disk.com may delete any Content or other materials relating
to your use of the On-Disk.com Service on On-Disk.com's servers or
otherwise in its possession and On-Disk.com will have no liability to
you or any third party for doing so.
11. Notice. All notices required or permitted
to be given under these
TOS will be in writing and delivered to the other party by any of the
following methods: (i) U.S. mail, (ii) overnight courier, or (iii)
electronic mail. If you give notice to On-Disk.com, you must use the
following addresses: 40 Charles Ave, Rochester, NY 14623
on-disk@on-disk.com. If
On-Disk.com provides notice to you, On-Disk.com
will use the contact information provided by you to On-Disk.com. All
notices will be deemed received as follows: (i) if by delivery by U.S.
mail, seven (7) business days after dispatch, (ii) if by overnight
courier, on the date receipt is confirmed by such courier service, or
(iii) if by electronic mail, 24 hours after the message was sent, if no
"system error" or other notice of non-delivery is generated. If
applicable law requires that a given communication be "in writing," you
agree that email communication will satisfy this requirement.
12. Dispute Resolution. All disputes arising
out of, relating to or
connected with these TOS or your use of any part of the On-Disk.com
Service will be exclusively resolved under confidential binding
arbitration held in Monroe County, New York before and in accordance
with the Rules of the American Arbitration Association, by a sole
arbitrator applying New York State law (without regard for conflicts of
law principles). The arbitrator's award will be binding and may be
entered as a judgment in any court of competent jurisdiction. To the
fullest extent permitted by applicable law, no arbitration under these
TOS will be joined to an arbitration involving any other party subject
to these TOS, whether through class arbitration proceedings or
otherwise. Any action to enforce an arbitrator's award will be brought
in a federal or state court located in Monroe County, New York, and
each party hereby irrevocably submits to the personal jurisdiction of
such court. By entering into these TOS, you hereby irrevocably waive
any right you may have to join claims with those of others in the form
of a class action or similar procedural device. Any claim arising out
of, relating to or connected with these TOS or your use of any part of
the On-Disk.com Service must be asserted individually.
13. Miscellaneous. These TOS will be binding
upon each party hereto and
its successors and permitted assigns, and governed by and construed in
accordance with the laws of the State of New York without reference to
conflict of law principles. These TOS will not be assignable or
transferable by you without the prior written consent of On-Disk.com.
These TOS (including all of the policies and other Agreements described
in this TOS, which are hereby incorporated herein by this reference)
contain the entire understanding of the parties regarding its subject
matter, and supersedes all prior and contemporaneous agreements and
understandings between the parties regarding its subject matter. No
failure or delay by a party in exercising any right, power or privilege
under these TOS will operate as a waiver thereof, nor will any single
or partial exercise of any right, power or privilege preclude any other
or further exercise thereof or the exercise of any other such right,
power, or privilege. You and On-Disk.com are independent contractors,
and no agency, partnership, joint venture, or employee-employer
relationship is intended or created by these TOS. The invalidity or
unenforceability of any provision of these TOS will not affect the
validity or enforceability of any other provision of these TOS, all of
which will remain in full force and effect.
9807787 requests since Wednesday 14 September, 2005
On-disk and the On-Disk.com logo are registered trademarks of Webpath Technologies in the United States
and/or other countries. Other Product names and Logos are trademark of their respective owners.
