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 Website.
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
in accordance with Section 15 and (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.
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
travelling 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:
-
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.
You may not operate network services such as:
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. Certain services are prohibited,
and you may not operate a .
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 Technologoes 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).
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