ACCEPTANCE OF TERMS Welcome to Stardock's WinCustomize.com. Stardock Corporation ("Stardock") provides the WinCustomize Site service to you, subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. You can review the most current version of the TOS at any time at: http://www.wincustomize.com.
DESCRIPTION OF SERVICE WinCustomize.com currently provides users with access to web page hosting services, specifically for WinCustomize-powered web pages, with the ability to upload and sell unique Gadgets (the "Service"). Unless explicitly stated otherwise, any new features that augment or enhance the current Service, shall be subject to this TOS. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based Content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
MEMBER CONDUCT All members submitting Content MUST be 18 years of age or older. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Stardock, are entirely responsible for all Content that you upload, post or otherwise transmit via the Service. Stardock does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable.
You agree to not use the Service to:
- upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to, a Stardock official, forum leader, guide, moderator or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
- "stalk" or otherwise harass another;
- collect or store personal data about other users;
- promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating "Crush" sites;
- send chain letters, junk mail, spam or any use of distribution lists to any person who has not given specific permission to be included in such a process.
- Interfere with another member's use and enjoyment of the Service or another entity's use and enjoyment of similar services.
- promote or advertise sexual or pornographic material or websites;
CONTENT SUBMITTED WinCustomize.com/Stardock does not claim ownership of the Content you place on your WinCustomize.com Site. Stardock may quote, redistribute or reproduce in whole or part of your Content (if you have made it public) in order to promote your WinCustomize.com site and/or the WinCustomize.com service, but only on a fair-use-type basis. By using this site, you agree to the following:
All Content uploaded onto this site must be original material created by you. By uploading any Content to this site, contributors are automatically assumed to be the creator and owner of the Content. You may not upload Content created by another person or taken from another source such as another website, etc, without express written permission from copyright owner. Copyright violation could result in account cancellation and in possible criminal prosecution.
By uploading content, you agree to accept the responsibility of supporting your upload. Stardock, under no circumstances, will not be responsible for the support of your upload, nor will Stardock provide support for any upload not produced directly by Stardock.
By uploading Content, you give permission to Stardock to sell the Content via WinCustomize.com as well as on compilation CDs or packs via online means or retail as long as the payment terms are not modified without prior consent.
If you upload malicious, inappropriate material repeatedly, your account will be cancelled without notice. By uploading to the site you also acknowledge that the site administrators reserve the right to reject any of your upload at any time if they feel that they are inappropriate for the site in any way.
Stardock reserves the right to reject submissions for quality, completeness or other reasons deemed by the moderators. Stardock reserves the right to negotiate price set on individual uploads and may reject submission if Stardock feels that the price is inappropriate. All uploads will be moderated and approved prior to being made public.
INDEMNITY You agree to indemnify and hold Stardock, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
NO RESALE OF SERVICE You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without explicit written permission.
MODIFICATIONS TO SERVICE Stardock reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Stardock shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. Account balance will be paid in accordance with section 9 stated below.
PAYMENT Payment will be calculated on a per calendar quarter. Payments will be made 90 days after the end of the calendar quarter. (Example: First quarter ends March 31st. Payment for that quarter will be processed on June 30th). A total of $25.00 must be accumulated prior to funds being dispersed.
Payment per upload will be a 70/30 split of net revenue between you and Stardock. Net revenue is defined as gross revenue (sale price) minus customary charges. These charges could include, but are not limited to: credit card processing fees, bandwidth, store fees, WinCustomize subscriber discounts, etc.
If uploads are sold via a compilation CD or pack, 70% of the net revenue will be divided among the owners of the uploads based on the percentage worth of their upload. As an example, if there was a pack with three upload s, which sold for a net $20, and the 3 uploads were individually worth net $10, $6, and $4, the disbursement would be $7, $4.20, and $2.80 respectively.
TERM AND TERMINATION The Term of this agreement is perpetual unless terminated by this clause. You agree that Stardock, in its sole discretion, may terminate your password, WinCustomize.com Site, use of the Service or use of any other Stardock service, and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use or if Stardock believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Stardock may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that Stardock may immediately deactivate or delete your WinCustomize.com Site and all related information and files in your WinCusotmize.com Site and/or bar any further access to such files or the Service. Further, you agree that Stardock shall not be liable to you or any third-party for any termination of your access to the Service. At time of termination, account balance will be paid in accordance with section 9
STARDOCK PROPRIETARY RIGHTS You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Stardock or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
DISCLAIMER OF WARRANTIES YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. STARDOCK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. (b) STARDOCK MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (vi) THE CONTENT WILL BE PERMANTLY BACKED UP OR DUPLICATED. (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM STARDOCK OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY YOU EXPRESSLY UNDERSTAND AND AGREE THAT STARDOCK SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF STARDOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
EXCLUSIONS AND LIMITATIONS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 12 AND 13 MAY NOT APPLY TO YOU.
NOTICE Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on the Service.
GENERAL INFORMATION The TOS constitute the entire agreement between you and Stardock and govern your use of the Service, superseding any prior agreements between you and Stardock or WinCustomize.com (including, but not limited to, any prior versions of the TOS). You also may be subject to additional terms and conditions that may apply when you use affiliate or other Stardock services, third-party Content or third-party software. The TOS and the relationship between you and Stardock shall be governed by the laws of the State of Michigan without regard to its conflict of law provisions. You and Stardock agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Wayne, Michigan. The failure of Stardock to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.
VIOLATIONS Please report any violations of the TOS to Stardock at email@example.com
STORAGE AND OTHER LIMITATIONS Stardock assumes no responsibility for the deletion or failure to store information entered into WinCustomize.com. Stardock has set no fixed upper limit on the number or posts Member may send or receive through the Service or the amount of storage spaced used; however, Stardock retains the right, at Stardock's sole discretion, to determine whether or not Member's conduct is consistent with the letter and spirit of the TOS and may terminate Service if a Member's conduct is found to be inconsistent with the TOS.