Terms of Use

Welcome to http://sitepen.com (including each subdomain, the “Site”), which is provided by SitePen, Inc. (“SitePen”, “we,” “us,” or “our”). These Terms of Use (the “Terms of Use”) constitute a binding agreement concerning your use of the Site. If you do not wish to be bound by these Terms of Use, please leave the Site. If you remain on the Site, or return thereafter, you agree to be bound by these Terms of Use.

Acceptable Use of the Site

You agree to act responsibly on the Site and to use the Site in a manner consistent with all applicable laws and regulations. Without limiting the foregoing, you agree that you will not use the Site to take any of the following actions: (a) restrict or inhibit any other user from using and enjoying any public or private area within the Site; (b) mirror, cache, reformat or frame any portion of the web pages of the Site; (c) impose an unreasonable or disproportionately large load on our infrastructure; or (d) otherwise interfere with or disrupt the Site, or our other sites, servers, or networks.

The technology and the software underlying the Site are the property of us and our suppliers. You agree not to copy, modify, rent, lease, loan, sell, assign, distribute, otherwise transfer, or reverse engineer, the Site, any technology or software underlying the Site or any links, tags, comments, and any other information, data, text, software, music, audio, photographs, graphics, video, messages and other materials (“Content”) on the Site, unless you have been specifically permitted by us in these Terms of Use or in a separate agreement (e.g. by a license to open source software). We may establish or revise from time to time at our discretion general practices and limits concerning your use of the Site. In addition, you agree that we have no responsibility or liability for the deletion, corruption, or alteration of, or failure to store any Content. We also reserve the right to terminate or suspend your account, your use of any or all of the Site or any Content without prior notice, and for any reason, including if you engage in any conduct that we believe: (a) violates the letter or spirit of any term or provision of these Terms of Use, (b) violates our rights or the rights of third parties, or (c) is otherwise inappropriate for continued access and use of the Site. In addition, we may terminate any account if that account has been inactive for more than six (6) months. If we request registration information from you, you must provide us with true, accurate, current, and complete information, and keep it updated. You may not use anyone else’s password, and you are responsible for maintaining the confidentiality of your passwords and accounts. You agree to notify us immediately of any unauthorized use of your passwords or accounts or any other breach of security. We will not be responsible for any loss or damage that may result if you fail to comply with these requirements, and may suspend or terminate your account if you fail to comply.

It is your responsibility to obtain at your own expense all equipment and third-party services (e.g., Internet access and email service) required for you to access and use the Site.

Your Comments and Feedback

We may provide forms or mechanisms for you to provide comments, feedback, suggestions and ideas about our or our suppliers’ Content (such as blog postings), products and services (collectively, “User Content”), and accordingly, we may use any User Content in any way, including in future versions of our Content, products or services, and/or advertising or promotions. You hereby grant us a perpetual, worldwide, irrevocable, royalty-free, non-exclusive, transferable, and sub-licenseable license to use, copy, create derivative works of, publicly perform, publicly display, transfer, transmit, translate, distribute and publish, all or any portion of the User Content, in any manner and for any purpose in any media or technology now or hereafter known.

In addition, if you provide User Content, you agree not to: (a) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others; (b) publish, post, upload, or otherwise disseminate (collectively, “Transmit”) any Content that is tortious, inappropriate, profane, defamatory, infringing, obscene, indecent, vulgar, unlawful, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or that otherwise could result in civil or criminal liability; (c) transmit any Content prohibited by intellectual property (e.g., patent, copyright, trademark, trade secret, or privacy and publicity) or other laws unless you are the owner or have permission to use such rights; (d) transmit Content that contains viruses, corrupted files, or any other software or functionality that may damage or adversely affect the operation of another person’s computer, the Site, any software or hardware, or telecommunications equipment, or interfere with any security or rights protection functionality of ours or any third party; (e) advertise or offer to sell any goods or services for any commercial purpose unless you have our written consent to do so; (f) transmit surveys, contests, pyramid schemes, spam and other unsolicited mass mail or email, unsolicited advertising or promotional materials, or chain letters; (g) falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other Content; (h) forge headers or manipulate identifiers or other data in order to disguise the origin of any Content transmitted through the Site or to manipulate your presence on the Site; (i) impersonate any person or entity, including, but not limited to, a SitePen representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; or (j) engage in any illegal activities, or incite or provide instructional information about illegal activities, under U.S. and local law.

Privacy and Other Policies

Your use of the Site is subject to our Privacy Policy and other applicable policies, each as in effect from time to time, available at www.SitePen.com, which are incorporated herein by reference.

Content Linked to by Us

The sites and Content displayed on our pages or linked to by us are developed by persons over whom we exercise limited or no control. We may provide links to sites and/or Content that some people find objectionable or inappropriate. We cannot guarantee that a link will not display objectionable or inappropriate content and assume no responsibility for the Content of any site included in our links or otherwise linked to by us. We do not guarantee the accuracy, integrity or quality of such Content.

Permission Granted to You

Permission is granted to view the Site and its Content and to save and print the same only for your internal use. Certain portions of the Site and its Content may be subject to other licenses (e.g., Creative Commons license for blog postings), as indicated on the relevant Site pages or Content. We reserve all rights not expressly granted.

Intellectual Property Policy

You agree that all programs, services, processes, designs, software, technologies, trademarks, trade names, inventions, patents, other intellectual property and materials comprising the Site, and the Site Content, are wholly owned by us and/or our suppliers except where expressly stated otherwise. The Site and such Content generally are protected by the copyright and trademark laws of the United States and other countries.

It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. Persons who believe that their copyrights or other intellectual property rights have been infringed via the Site may notify our Designated Agent. All notices must comply with the requirements of U.S. Copyright Act Section 512(d) and regulations promulgated thereunder, as amended. Such notices not complying with these requirements will be returned unprocessed. Please indicate the specific Content, and website URL or location of the Content. You may be liable for damages if you materially misrepresent that an activity is infringing your copyright. Designated Agent and Address of Agent:

Attn: Copyright Designated Agent
SitePen, Inc.
530 Lytton Avenue
2nd Floor, Suite 5301
Palo Alto, California 94301
United States of America
Email: copyright@sitepen.com

DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

THE SITE AND ALL CONTENT ON THE SITE (“SITEPEN ITEMS”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT ACCESS TO OR USE OF ANY SITEPEN ITEM WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. WE AND OUR SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY. YOUR USE OF SITEPEN ITEMS IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF CONTENT OR OTHER MATERIAL (INCLUDING SITEPEN ITEMS) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM US. YOU AGREE THAT NEITHER WE NOR ANY OF OUR SUPPLIERS WILL BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOST REVENUES, PROFITS OR SAVINGS) ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SITE OR ANY OTHER SITEPEN ITEMS, AND YOU HEREBY RELEASE AND WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF WE OR ANY SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” RESIDENTS OF OTHER STATES AND NATIONS SIMILARLY WAIVE THEIR RIGHTS UNDER COMPARABLE LOCAL LAW. OUR AND OUR SUPPLIERS’ ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF SITEPEN ITEMS OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SITE. YOU HEREBY RELEASE US AND EACH OF OUR SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF SITEPEN ITEMS OR THESE TERMS OF USE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.

Indemnification

You agree to indemnify and hold harmless us and each of our officers, directors, employees, agents, and suppliers from and against any and all losses, liabilities, expenses (including attorneys’ fees and costs) and damages arising out of claims based on your use of the Site, or on your account or your User Content, including any violation of these Terms of Use by you or any other person using your account, any claim of libel, defamation, violation of rights of privacy or publicity, any loss of service by other customers, any infringement of intellectual property or other rights of any third parties, and any violation of any laws or regulations, including but not limited to any violation of any laws or regulations prohibiting transmission of unsolicited email or marketing messages.

Miscellaneous Provisions

These Terms of Use will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or your actual state or country of residence. The UN Convention on Contracts for the International Sale of Goods is disclaimed. You agree that exclusive jurisdiction for any claim or dispute arising from these Terms of Use shall be in the federal and state courts located in Santa Clara County, California, U.S.A. The Site is not offered to anyone under thirteen (13) years of age. If for any reason a court of competent jurisdiction finds any provision or portion of the Terms of Use to be unenforceable, the remainder of the Terms of Use will continue in full force and effect. You may not assign or transfer these Terms of Use or any rights hereunder, and any attempt to the contrary is void. Subject to the preceding sentence, these Terms of Use benefit and bind the respective successors and assigns of the parties. These Terms of Use constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms of Use will be effective only if in writing and signed by us. There are no third party beneficiaries of these Terms of Use. Under no circumstances shall we or our suppliers be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, or causes beyond our reasonable control, including, without limitation, Internet, telecommunication and utility failures; equipment failures; strikes; labor disputes; riots; insurrections; civil disturbances; shortages of labor or materials; fires; floods; storms; explosions; acts of God; war; governmental actions, or non-performance of third parties. Notices given by us to you will be given by general posting on the Site website, or by email, overnight courier, first class or express mail to your address in our records. Notices given by you to us must be given by first class or express mail, certified or registered, postage prepaid and sent to SitePen, Inc., 530 Lytton Avenue, 2nd Floor, Suite 5301, Palo Alto, California 94301, United States of America. The following provisions will survive any termination of these Terms of Use: “Acceptable Use of the Site”, “Your Comments and Feedback”, “Content Linked to by Us”, “Intellectual Property Policy”, “Disclaimer of Warranties and Limitation of Liability”, “Indemnification”, “Miscellaneous” and “Changes in Terms of Use”.

Changes In Terms of Use

We may modify or terminate the Site from time to time, for any reason, and without notice, including the right to terminate with or without notice, without liability to you, any other user or any third party. We reserve the right to modify these Terms of Use from time to time without notice. Please review these Terms of Use from time to time so that you will be apprised of any changes.

Effective date of this version: December 12, 2007