These Terms and Conditions of Use (the “Terms of Use”) apply to the Acutulus Technologies, Inc. Company web site located at www.ThermoThink.com, and all associated sites linked to www.ThermoThink.com by Acutulus Technologies, Inc. (“Acutulus”), its subsidiaries and affiliates, including Acutulus sites around the world (collectively, the “Site”). The Site is the property of Acutulus and its licensors. BY USING THE SITE, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE SITE. Acutulus reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, Acutulus grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site.
Content
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to Acutulus, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. All these intellectual property rights are reserved by and for the benefit of Acutulus.
Except as expressly provided in these Terms of Use, no part of the Site and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Acutulus’s express prior written consent.
You may use information on Acutulus’s products and services (such as data sheets, knowledge base articles, and similar materials) purposely made available by Acutulus for downloading from the Site, provided that you (1) not remove any proprietary notice language in all copies of such documents, (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such documents.
Your Use of the Site
You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. Acutulus reserves the right to bar any such activity.
You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any Acutulus server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means.
You may not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of Acutulus, including any Acutulus account not owned by you, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Site.
You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Acutulus’s systems or networks, or any systems or networks connected to the Site or to Acutulus.
You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.
You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Acutulus on or through the Site or any service offered on or through the Site. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
You may not use the Site or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of Acutulus or others.
Purchases; Other Terms and Conditions
Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the Site, including contests, promotions or other similar features, all of which terms are made a part of these Terms of Use by this reference. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between these Terms of Use and the terms posted for or applicable to a specific portion of the Site or for any service offered on or through the Site, the latter terms shall control with respect to your use of that portion of the Site or the specific service.
Acutulus’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site should be construed to alter such agreements.
Acutulus may make changes to any products or services offered on the Site, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and Acutulus makes no commitment to update the materials on the Site with respect to such products and services.
Links to Other Sites and to the Acutulus Site
This Site may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Acutulus’s control, and Acutulus is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
Disclaimers
ACUTULUS DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. ACUTULUS CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. ACUTULUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ACUTULUS DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY ASC SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST ACUTULUS FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
Acutulus reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
Limitation of Liability
Except where prohibited by law, in no event will Acutulus be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if Acutulus has been advised of the possibility of such damages.
If, notwithstanding the other provisions of these Terms of Use, Acutulus is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Site or any Content, Acutulus’s liability shall in no event exceed the greater of (1) the total of any subscription or similar fees with respect to any service or feature of or on the Site paid in the six months prior to the date of the initial claim made against Acutulus (but not including the purchase price for any Acutulus hardware or software products or any Acutulus support program), or (2) US$100.00.
Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.
Indemnity
You agree to indemnify and hold Acutulus, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Acutulus by any third party due to or arising out of or in connection with your use of the Site or products.
Acutulus shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to, acts of God, strikes, lock outs, accidents, war, fire, failure of any communications, telecommunications or computer system, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and Acutulus shall be entitled to a reasonable extension of its obligations.
In the event of any breach of these Terms and Conditions by Acutulus, the remedies shall be limited to damages which shall in no circumstances exceed the price of the Goods and/or Services and Acutulus shall under no circumstances be liable for any indirect, incidental or consequential loss or damage whatever.
Violation of These Terms of Use
Acutulus may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Acutulus’s rights or property, or the rights or property of visitors to or users of the Site, including Acutulus’s customers. Acutulus reserves the right at all times to disclose any information that Acutulus deems necessary to comply with any applicable law, regulation, legal process or governmental request. Acutulus also may disclose your information when Acutulus determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
You acknowledge and agree that Acutulus may preserve any transmittal or communication by you with Acutulus through the Site or any service offered on or through the Site, and may also disclose such data if required to do so by law or Acutulus determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Use, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of Acutulus, its employees, users of or visitors to the Site, and the public.
You agree that Acutulus may, in its sole discretion and without prior notice, terminate your access to the Site, block your IP address and/or block your future access to the Site if we determine that you have violated these Terms of Use or other agreements or guidelines which may be associated with your use of the Site. You also agree that any violation by you of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to Acutulus, for which monetary damages would be inadequate, and you consent to Acutulus obtaining any injunctive or equitable relief that Acutulus deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Acutulus may have at law or in equity.
You agree that Acutulus may, in its sole discretion and without prior notice, terminate your access to the Site, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Site or any service offered on or through the Site, or (4) unexpected technical issues or problems.
If Acutulus does take any legal action against you as a result of your violation of these Terms of Use, Acutulus will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Acutulus. You agree that Acutulus will not be liable to you or to any third party for termination of your access to the Site as a result of any violation of these Terms of Use.
Governing Law; Dispute Resolution
You agree that all matters relating to your access to or use of the Site, including all disputes, will be governed by the laws of the United States and by the laws of the State of Nebraska without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Douglas County, Nebraska, and waive any objection to such jurisdiction or venue. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. Claims made under the separate terms and conditions of purchase for goods and services are not subject to this limitation. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between Acutulus and you arising out of or in connection with your use of the Site, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
Void Where Prohibited
Acutulus administers and operates the www.ThermoThink.com Site from its location in the United States of America. Although the Site may be accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Acutulus reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
Miscellaneous
You may not use or export or re-export any Content or any copy or adaptation of such Content, or any product or service offered on the Site, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire agreement between you and Acutulus with regard to your use of the Site, and any and all other written or oral agreements or understandings previously existing between you and Acutulus with respect to such use are hereby superseded and cancelled. Other than as provided in a purchase agreement you enter into with Acutulus, Acutulus will not accept any counter-offers to these Terms of Use, and all such offers are hereby categorically rejected. Acutulus’s failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by Acutulus of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between Acutulus and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.
Acutulus provides access to Acutulus international data and, therefore, may contain references or cross references to Acutulus products, programs and services that are not announced in your country. Such reference does not imply that Acutulus in your country intends to announce such products, programs or services.
Feedback and Information
Any feedback you provide at this site shall be deemed to be non-confidential. Acutulus shall be free to use such information on an unrestricted basis.
The information contained in this web site is subject to change without notice. Revised terms and conditions will apply to the use of this website from the date of the publication of the revised terms and conditions on this website. Please check this page regularly to ensure you are familiar with the current version.