McQuillen Interactive Pty. Ltd. Terms of Service for SimpleDiagrams.com
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SITE AND THE SERVICES OFFERED HERE.
The "Site" is comprised the web pages available at SimpleDiagrams.com, and all linked pages, features, content, or Applications. The Site is owned and operated by McQuillen Interactive Pty. Ltd. (hereafter referred to as the "Company").
BY USING THE SITE AND THE SERVICES OFFERED HERE, YOU SIGNIFY YOUR ASSENT TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (“TERMS OF SERVICE”). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF SERVICE, YOU DO NOT HAVE ANY RIGHT TO USE ANY SERVICE OFFERED HERE. THE COMPANY’S OFFER OF SERVICES TO YOU IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS OF SERVICE, TO THE EXCLUSION OF ALL OTHER TERMS. YOUR ACCEPTANCE OF THIS OFFER BY THE COMPANY IS EXPRESSLY LIMITED TO THESE TERMS.
This Agreement applies to all users of the Site and Services including users who contribute content, information and other materials or services on the Site (such contributions collectively, “User Content”).
The purpose of the Site is to provide a diagramming application for download and use and provide news and information about this application and related services (collectively, “Services”).
MODIFICATIONS OF TERMS OF SERVICE
The Company reserves the right, at its sole discretion, to modify or replace the Terms of Service at any time. If the alterations constitute a material change to the Terms of Service, the Company will notify you by posting an announcement on the Site. What constitutes a "material change" will be determined at the Company's sole discretion, in good faith and using common sense and reasonable judgment. You shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Site or any Service by you following such notification constitutes your acceptance of the terms and conditions of the Terms of Service as modified. Certain Services and Content will only be made available to users who have paid the Company a license fee for such Services or Content. Such users may additionally be required to enter into an End-User License Agreement or other use agreement with the Company (each, a “EULA”) for that particular Service or Content.
DESCRIPTION OF SERVICE
Services shall include, but not be limited to, any service and content the Company performs for you, as well as the offering of any materials displayed, transmitted or performed on the Site or through the Services (including, but not limited to text, user comments, messages, information, data, graphics, news articles, photographs, images, illustrations, software, audio clips and video clips, also known as the "Content"). The Company may change, suspend or discontinue the Services including any Content for any reason, at any time, including the availability of any feature or Content component; provided, however, that if you have paid a license fee for a Service or Content and are in full compliance with the applicable EULA, the Company may only discontinue such Service or Content in accordance with the applicable EULA. The Company may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability.
CONTENT AND USE OF SITE AND SERVICES
Any comments, suggestions, or feedback relating to the Site or any Service (collectively “Feedback”) submitted to the Company shall become the property of the Company or its designee. The Company will not be required to treat any Feedback as confidential, and will not be liable for any ideas (including without limitation, product, Site or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our future Site, Services, or operations. Without limitation, the Company will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Feedback. You acknowledge that you are responsible for whatever material you submit, and you, not the Company, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright
The Company will use reasonable efforts to ensure that the Site and Services are available twenty-four hours a day, seven days a week. However, there will be occasions when the Site and/or Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every commercially reasonable step will be taken by the Company to minimize such disruption where it is within the Company’s reasonable control. YOU AGREE THAT NEITHER THE COMPANY NOR THE SITE WILL BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SITE, ANY SERVICE, YOUR USER CONTENT OR OTHER CONTENT.
You shall pay all costs and charges, including phone charges and telecommunications equipment costs, that you incur in order to access or use the Site, Services and Content. You must adhere to all limitations on dissemination, usage and reproduction of any Content that you download from the Site that are subject to such limitations. You agree to use the Services only to access, download, utilize, post, send or receive Content in an appropriate manner as related to the particular Content or Services being accessed or used by you.
If you are required to establish an account in connection with a particular Service or Content, you must complete the designated registration process for such Service or Content. All required registration information that you provide must be current, complete and accurate and kept up to date on a prompt, timely basis. If required, you must also choose a user name and password for such account. It is your sole responsibility to keep your account number, user name, password and other sensitive information confidential. If you become aware of any unauthorized use of your account or any other breach of security, you shall notify the Company immediately. If any Services or Content provide password-restricted access to your sensitive information (including customer lists and contractual terms), then by accessing or using this Site and setting up a password-restricted account for such Services or Content, you consent to the Company's display of such information via such Services or Content and accept all risks of unauthorized access to such information.
You hereby confirm that you own or otherwise control all of the Intellectual Property Rights and other rights to your User Content, including all the rights necessary for you to post or submit your User Content. In addition, by posting or otherwise submitting your User Content that contains images, photographs, pictures, videos, webcasts or that are otherwise graphical in whole or in part ("Images"), you represent and warrant that: (a) you own the copyright in such Images, or that you have obtained all necessary license(s) from the copyright owner(s) of such Images to use such Images, or portions thereof; and (b) you have received consent from any and all persons depicted in such Images to use the Images on the Site. You are solely and entirely responsible for all of your User Content that you post or otherwise submit via the Site or any Service. You shall assume all risks associated with the use of your User Content including any reliance on the accuracy, completeness or usefulness of your User Content.
You are responsible for all of your activity in connection with the Services and accessing the Site. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain a license key or personal information from a Site or Services user.
You shall not use any part of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. Without limiting the generality of the foregoing, you shall not transmit unsolicited or bulk communications to any the Company account holder or email address or to any third party, or post or otherwise submit any software, programs or files that are harmful or disruptive of another’s equipment, software or other property, including any corrupted files, time bombs, Trojan horses, viruses or worms. In addition, you shall not use any McQillen Interactive domain name as a pseudonymous return e-mail address.
Except as set forth herein or in any EULA that you enter into, the Company does not grant any express or implied rights to use any Content or Service. You agree not to copy, republish, frame, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license, sublicense or reverse engineer the Site, or any Content or Service (except as may be authorized in your EULA), or the selection and arrangement of the Site, Content or Services.
The Company has no special relationship with or fiduciary duty to you. You acknowledge that the Company has no control over, and no duty to take any action regarding: which users gain access to the Site or Services; what Content you access via the Site or Services; what effects the Content may have on you; how you may interpret or use the Content and what effects it may have on others; or what actions you may take as a result of having been exposed to the Content. You release the Company from all liability for your having acquired or not acquired Content through the Site. The Site or Services may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. The Company makes no representations concerning any content contained in or accessed through the Site or Services, and the Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site. THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You will indemnify and hold harmless the Company its parents, subsidiaries, affiliates, customers, vendors, officers, directors and employees from any liability, damage or cost (including reasonable attorneys. fees and costs) from (i) any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, violation of the Terms of Service by you, or the infringement by you in your use of the Site or any Service, or by any third party in connection with such use, of any intellectual property or other right of any person or entity.
LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY, ITS PARENTS, SUBSIDIARIES, AFFILIATES, CUSTOMERS, OFFICERS, DIRECTORS, EMPLOYEES, CUSTOMERS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, OR ANY DAMAGES OR LOSSES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, AND ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH: (1) THE ACCESS OR USE OF OR THE INABILITY TO ACCESS OR USE THE SITE, SERVICES, OR MATERIALS; (2) THE STATEMENTS OR ACTIONS OF ANY THIRD PARTY ON OR VIA THE SITE, SERVICES OR MATERIALS; (3) ANY DEALINGS WITH VENDORS OR OTHER THIRD PARTIES; (4) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, USER MATERIALS OR OTHER DATA; (5) ANY INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED; (6) ANY FAILURE TO STORE OR LOSS OF DATA, FILES, MATERIALS OR OTHER CONTENT; (7) ANY SERVICES AVAILABLE THAT ARE DELAYED OR INTERRUPTED; (8) ANY WEB SITE REFERENCED OR LINKED TO FROM THIS SITE; OR (9) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE ANY LINKED SITE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
the Company may terminate or suspend any and all Services immediately, without prior notice or liability, if you breach any of the terms or conditions of the Terms of Service. Upon termination of your account, your right to use the Services will immediately cease. All provisions of the Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
The SimpleDiagrams trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.
The Company will, in appropriate circumstances, terminate the accounts of users who infringe the Intellectual Property Rights of others. The Company will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA"). If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Site or on sites linked to from this Site or in connection with the Services or Content, please provide, pursuant to the DMCA, written notification of claimed copyright infringement to the Designated Agent for this Site (identified below), which must contain the following elements:
- A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;
- A description of the copyrighted work or works that you claim have been infringed and identification of what content in such work(s) is claimed to be infringing and which you request to be removed or access to which is to be disabled;
- A description of where the content that you claim is infringing is located on the the Company's site;
- Information sufficient to permit the Company to contact you, such as your physical address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the use of the content identified in your Notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner's behalf.
The Company's Designated Agent for Notice of claims of copyright infringement can be reached as follows:
Daniel McQuillen - Owner
McQuillen Interactive Pty. Ltd.
46 Doyle Ave
Lenah Valley, Tasmania 7008
The Designated Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Site or on sites linked to from the Site or in connection with the Services or Content. All other inquiries directed to the Designated Agent will not be responded to. Such inquiries should be made through the feedback procedure.
No agency, partnership, joint venture, or employment is created as a result of the Terms of Service and you do not have any authority of any kind to bind the Company in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a later waiver of such right or a waiver of any further rights hereunder. The Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond the Company's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference).
If any provision of the Terms of Service is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms of Service shall otherwise remain in full force and effect and enforceable. The Terms of Service is not assignable, transferable or sublicensable by you except with the Company's prior written consent. The Company may transfer, assign or delegate the Terms of Service and its rights and obligations without consent. The Terms of Service shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof, and the parties submit to the exclusive jurisdiction (without limiting the Company's right to seek injunctive or other equitable relief in any court of competent jurisdiction) of the Superior Court of Santa Cruz County and the United States District Court for the Northern District of California, In any action or proceeding to enforce rights under the Terms of Service, the prevailing party will be entitled to recover costs and attorneys' fees. If for any reason a court of competent jurisdiction finds any provision of the Terms of Service, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Terms of Service shall continue in full force and effect. Both parties agree that the Terms of Service is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Terms of Service.