Conditions of Use
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.
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.
3.3 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.
10.1 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
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.