Terms of Service
Terms of Service
1. The Services
The services covered by this Agreement include both free services that Cheyenne Technologies and its affiliates (referred to together herein as "we" or "us") make available for no fee, for the purpose of promoting sales and for other purposes (the "Free Services"), and services that we make available for a fee (the "Paid Services"). The Free Services and the Paid Services are referred to collectively in this Agreement as the "Services." Each Free Service and Paid Service is referred to individually as a "Service."
1.1. Free Services. The Free Services include trial activation of the Surf Bouncer service and all other web services that we make available to you free of charge.
1.2. Paid Services. The Paid Services include the Surf Bouncer service and all web services we make available to you for a fee.
2. Modifications to this Agreement
You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, "Additional Policies") at any time by posting a revised version of the Agreement or such Additional Policy on the Surf Bouncer Web site. By continuing to use the Services after the effective date of any revisions to this Agreement, you agree to be bound by the revised Agreement. It is your responsibility to check the Surf Bouncer Website regularly for changes to this Agreement or the Additional Policies, as applicable.
3. Term, Termination and Suspension
3.1. Term. The term of this Agreement ("Term") will commence with registration to use the service. The Agreement will remain in effect until terminated by you or us in accordance with this Section 3.
3.2. Termination by You for Convenience. You may terminate this Agreement for any reason or no reason at all, at your convenience, by (i) providing us written notice of termination via email or (ii) closing your account for any Service for which we provide an account closing mechanism.
3.3. Termination or Suspension by Us Other Than for Cause.
3.3.1. Free Services. We may suspend your right and license to use any or all Free Services for any reason or for no reason, at our discretion at any time, immediately upon notice to you in accordance with the notice provisions set forth in Section 15 below.
3.3.2. Paid Services We may suspend your right and license to use any or all Paid Services for any reason or for no reason, at our discretion at any time by providing you sixty (60) days' advance notice in accordance with the notice provisions set forth in Section 15 below.
3.4. Termination or Suspension by Us for Cause. We may suspend your right and license to use any individual Service or any set of Services, or terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:
3.4.1. Immediately upon our notice to you in accordance with the notice provisions set forth in Section 15 below if: (i) you attempt a denial of service attack on any of the Services; (ii) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services poses a security or service risk to us, to any user of services offered by us, to any third party sellers on any of our websites, or to any of our or their respective customers or may subject us or any third party to liability, damages or danger; (iii) you otherwise use the Services in a way that disrupts or threatens the Services; (iv) you are in default of your payment obligations hereunder and there is an unusual spike or increase in your use of the Services; (v) we determine, in our sole discretion, there is evidence of fraud with respect to your account; (vi) you use any of the Services (as defined in Section 6.1) or Marks (as defined in Section 6.2) other than as expressly permitted herein; (vii) we receive notice or we otherwise determine, in our sole discretion, that you may be using the Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (viii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (ix) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.4.2. Fifteen (15) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within such 15 day period.
3.4.3. Five (5) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5 day period.
3.5. Effect of Suspension or Termination.
3.5.1. Suspension.Upon our suspension of your use of any Services, in whole or in part, for any reason, (i) fees will continue to accrue for any Services that are still in use by you, notwithstanding the suspension (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Services; and (iii) all of your rights with respect to the applicable Services shall be terminated during the period of the suspension.
3.5.2. Termination.Upon termination of this Agreement for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all of your rights under this Agreement shall immediately terminate.
3.6. Survival. In the event this Agreement is terminated for any reason, all other sections (with respect to payments that are accrued but unpaid at the time of termination), will survive any such termination.
4. Authorization and License to Use the Services
Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Services that are set forth on the applicable Service detail page on the Surf Bouncer Website (as such payment terms may be updated from time to time), we hereby grant you a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
5. Authorized Use Policies (AUP) for Specific Services
The following AUPs apply only to the specific Services for which they are provided. In the event of a conflict between the terms of an AUP and the terms and conditions of this Agreement, the terms of the AUP shall apply, but only to the extent of such conflict.
5.1. Surf Bouncer Service
5.1.1. In addition to the termination and suspension rights outlined in Section 3, we retain the right to determine, in our sole discretion, whether you shall be entitled to use the Surf Bouncer Service and, if we have permitted you to use it, to discontinue your use of the Service at any time, in our sole discretion upon notice to you.
5.1.2. Unless we have provided you our express written consent in advance, you may not sell, resell, redistribute, sublicense, or transfer all or any portion of the Surf Bouncer Service. You also may not share your account in a manner that results in an attempt to connect to the service from more than one location at a time. This license allows for one single connection to our servers per account at a time.
5.4. Surf Bouncer Service
5.4.1. Provided that you comply with the terms of this Agreement and our policies and procedures for the use of the Service you may use Surf Bouncer To access the internet for any lawful purpose.
5.4.2. While we may track information regarding your usage of Surf Bouncer we will not disclose, or sell any information we have.
5.4.3. You are personally responsible for all traffic traveling through the Service As such, you should protect your authentication keys and security credentials. Actions taken using your credentials shall be deemed to be actions taken by you.
5.4.4. Email. Electronic communications must adhere to all applicable laws. Without limiting the foregoing, the following are strictly prohibited: Sending of Spam/Unsolicited email, including: Pyramid schemes. Chain letters. Sending any mail in contravention of the CAN SPAM Act of 2003 or other applicable state or federal laws and regulations. Forgery: Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.
5.4.5. Network. You may make network connections from Surf Bouncer servers to other hosts only with the permission and authorization of the destination hosts and networks. Examples of unacceptable network traffic include: Torrent or other networks that provide illegal content as defined by US law and the DMCA. Unauthorized probes and port scans for vulnerabilities. Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any systems. Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled. Unauthorized network monitoring or packet capture. Forged or non-standard protocol headers, such as altering source addresses, etc. Flooding. Denial of Service (DoS) of any kind. Transmission of material that is protected by copyright or other intellectual property rights illegally. You may not operate network services such as: Open proxies. Open mail relays. Open, recursive domain name servers.
5.4.6. Services and Applications. The Surf Bouncer servers are hosted in and are subject to all applicable laws of the United States and other applicable local laws. You are responsible for maintaining licenses and adhering to the license terms of any software you run.
6. Downtime and Service Suspensions; Security
6.1. Downtime and Service Suspensions. In addition to our rights to terminate or suspend Services to you as described in Section 3 above, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Without limitation to Section 11.5, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension.
7. Fees
7.1. Service Fees. In consideration of your use of any of the Service, you agree to pay applicable fees as indicated on the Surf Bouncer Website.
8. Intellectual Property
8.1. Our Services. Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Marks; and (iii) any other technology and software that we provide or use to provide the Services. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Marks, or such other technology and software, except for the limited use and access rights described in this Agreement.
8.2. Feedback. In the event you elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services or the Marks (collectively, "Feedback"), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.
8.4. Non-Assertion. During and after the term of the Agreement, with respect to any of the Services that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us) sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
9. Representations and Warranties; Disclaimers; Limitations of Liability
9.1. Use of the Services. You represent and warrant that you will not use the Services, (i) in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
9.2. Authorization and Account Information. You represent and warrant that: (i) the information you provide in connection with your registration is accurate and complete; (ii) if you are registering for the Services as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering for the Services as an entity or organization, (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual clicking "Accept" on this Agreement and completing the registration meets the requirements of subsection (ii) above and is an authorized representative of your entity, and (c) your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind you to this Agreement and all transactions conducted under your account.
9.3. Disclaimers. CHEYENNE TECHNOLOGOES (SURF BOUNCER SERVICE), THE MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS". WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9.4. Limitations of Liability. NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
10. Indemnification
10.1. General. You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) your use of the Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, AUPs, and/or applicable law, (ii) your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of your Application and/or Your Content, (iii) your violation of any term or condition of this Agreement, including without limitation, your representations and warranties, or (iv) you or your employees' or personnel's negligence or willful misconduct.
10.2. Notification. We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
11. Disputes
11.1. Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Cheyenne Technologies or any third party's intellectual property and/or proprietary rights. Any dispute relating in any way to your visit to the Surf Bouncer Website or to products or services distributed by Cheyenne Technologies or its affiliates in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in any state or federal court in Anchorage County, Alaska, and you consent to exclusive jurisdiction and venue in such courts.
11.2. Governing Law. By using the Services, you agree that the laws of the State of Alaska, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
12. Notices
12.1. To You. Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally will be posted on the Surf Bouncer Website. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us in your registration for the Services or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
12.2. To Us. For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact us as follows:
info@surfbouncer.com
12.3. Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
13. Miscellaneous Provisions
13.1. Third Party Activities. If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
13.2. Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
13.3. Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
13.4. Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
13.5. Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the Surf Bouncer Website, including all Additional Policies, and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.
13.6. No Endorsement. You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your Applications or Your Content.
13.7. Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates).