Effective as of September 2nd, 2012
1.1 Your use of Habitualist is governed by this agreement (the "Terms"). "Eldarion" means Eldarion, Inc., located at 31 Pinebrook Road, Nashua, NH 03062, United States, and its subsidiaries or affiliates involved in providing Habitualist. "Habitualist" means the services Eldarion makes available through this website, including this website, and the Habitualist application program interface (API), and any other software or services offered by Eldarion in connection thereof.
1.2 In order to use Habitualist, you must first agree to the Terms. You will agree to the Terms by actually using Habitualist. You understand and agree that Eldarion will treat your use of Habitualist as acceptance of the Terms from that point onwards.
1.3 You may not use Habitualist if you are a person barred from using Habitualist under the laws of the United States or other countries, including the country in which you are resident or from which you use Habitualist, or international laws or treaties. You affirm that you are over the age of 13, as Habitualist is not intended for children under 13. IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, OR THE LEGAL AGE OF MAJORITY WHERE YOU RESIDE IF THAT JURISDICTION HAS AN OLDER AGE OF MAJORITY, THEN YOU AGREE TO REVIEW THE TERMS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THE TERMS. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THE TERMS ON YOUR BEHALF. IF YOU ARE A PARENT OR GUARDIAN AGREEING TO THE TERMS FOR THE BENEFIT OF A CHILD OVER 13, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD'S USE OF HABITUALIST, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR
2.1 You must provide accurate and complete registration information any time you register to use Habitualist. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Eldarion immediately.
2.2 Your use of Habitualist must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
4.1 For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in Eldarion fees and payment policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys' fees Eldarion incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). To the fullest extent permitted by law, refunds (if any) are at the discretion of Eldarion and only in the form of credit for Habitualist. Nothing in these Terms obligates Eldarion to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Eldarion may be shared by Eldarion with companies that work on Eldarion's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Eldarion and servicing your account. Eldarion may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Eldarion shall not be liable for any use or disclosure of such information by such third parties. Eldarion reserves the right to discontinue the provision of Habitualist to you for any late payments.
4.2 Eldarion may change its fees and payment policies for Habitualist by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL Eldarion may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
5.1 You acknowledge and agree that Eldarion (or Eldarion's licensors) own all legal right, title and interest in and to Habitualist, including any intellectual property rights that relate to or subsist in Habitualist (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
5.2 Except as provided in Section 7, Eldarion acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you create, submit, post, transmit or display on, or through, Habitualist, including any intellectual property rights that subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Eldarion, you agree that you are responsible for protecting and enforcing those rights and that Eldarion has no obligation to do so on your behalf.
6.1 Eldarion gives you a limited, personal, worldwide, revocable, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Eldarion as part of Habitualist as provided to you by Eldarion. This license is for the sole purpose of enabling you to use and enjoy the benefit of Habitualist as provided by Eldarion, in the manner permitted by the Terms.
6.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of Habitualist or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Eldarion in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by Habitualist.
6.3 Open source software licenses for components of Habitualist released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Eldarion for the use of the components of Habitualist released under an open source license.
6.4 Eldarion hereby grants you a limited, personal, revocable, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Eldarion trademarks and logos expressly provided to you by Eldarion for the sole purpose of promoting or advertising that you use Habitualist (the "Marks"). You agree that all goodwill generated through your use of the Marks shall inure to the benefit of Eldarion. You shall not use any Mark to disparage Eldarion, its products or services, or in a manner that, in Eldarion's reasonable judgment, may diminish or damage its goodwill in the Mark or imply endorsement by Eldarion. You agree to cease all such uses upon written notification by Eldarion. You agree not to take any action that might lead a third party to think that any Mark is owned by you, or which might adversely impact Eldarion's reputation. You shall at all times use the Marks in a manner consistent with trademark laws. You shall notify Eldarion immediately of any improper, infringing, confusing or unauthorized use of Marks of which you become aware. You shall not alter the appearance of any Mark or obscure such Mark in any way. Changing the color, font, or proportions of any Mark is prohibited.
7.1 Eldarion claims no ownership or control over any Content. You retain copyright and any other rights you already hold in the Content, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through Habitualist you give Eldarion a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Eldarion to provide you with Habitualist.
7.2 You may choose to or we may invite you to submit comments or ideas about Habitualist, including without limitation about how to improve Habitualist or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Eldarion under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
7.3 You agree that Eldarion, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of Habitualist.
8.1 Eldarion is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of Habitualist that Eldarion provides may change from time to time without prior notice to you, subject to the terms in Section 4.2. Changes to the form and nature of Habitualist will be effective with respect to all versions of Habitualist; examples of changes to the form and nature of Habitualist include, without limitation, changes to fee and payment policies, security patches, added functionality and other enhancements.
8.2 You may terminate these Terms at any time by canceling your account on Habitualist. You will not receive any refunds if you cancel your account.
8.3 You agree that Eldarion, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to Habitualist may be without prior notice, and you agree that Eldarion will not be liable to you or any third party for such termination.
8.4 You are solely responsible for exporting your Content from Habitualist prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content.
8.5 Upon any termination of Habitualist or your account these Terms will also terminate, but Sections 5.1, 8, 9, 10, 11, and 15 shall continue to be effective after these Terms are terminated.
9.1 NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ELDARION'S WARRANTY OR LIABILITY FOR LOSSES THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
9.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF HABITUALIST IS AT YOUR SOLE RISK AND THAT HABITUALIST IS PROVIDED "AS IS" AND "AS AVAILABLE."
9.3 ELDARION, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING HABITUALIST, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ELDARION, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF HABITUALIST WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF HABITUALIST WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) DATA PROVIDED THROUGH HABITUALIST WILL BE ACCURATE.
10.1 SUBJECT TO SECTION 9.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT ELDARION, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
10.2 THE LIMITATIONS ON ELDARION'S LIABILITY TO YOU IN SECTION 10.1 ABOVE SHALL APPLY WHETHER OR NOT ELDARION HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
You agree to hold harmless and indemnify Eldarion, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively "Eldarion and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of Habitualist, (c) your violation of applicable laws, rules or regulations in connection with Habitualist, or (d) your Content, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Eldarion will provide you with written notice of such claim, suit or action.
You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act of 1998 (the "DMCA notices"). It is Eldarion's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content upon receipt of a valid DMCA notice.
13.1 Habitualist may include hyperlinks to other web sites or content or resources or email content. Eldarion may have no control over any web sites or resources that are provided by companies or persons other than Eldarion.
13.2 You acknowledge and agree that Eldarion is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
13.3 You acknowledge and agree that Eldarion is not liable for any loss or damage that may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
14.1 Eldarion may make changes to the Terms from time to time. When such changes are made, Eldarion will make the updated Terms available on its website.
14.2 You understand and agree that if you use Habitualist after the date on which the Terms have changed, Eldarion will treat your use as acceptance of the updated Terms.
15.1 The Terms constitute the whole legal agreement between you and Eldarion and govern your use of Habitualist (but excluding any services which Eldarion may provide to you under a separate written agreement), and completely replace any prior agreements between you and Eldarion in relation to Habitualist.
15.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
15.3 If Eldarion provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
15.4 You agree that Eldarion may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on Habitualist. By providing Eldarion your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
15.5 If Eldarion does not exercise or enforce any legal right or remedy which is contained in the Terms (or that Eldarion has the benefit of under any applicable law), this will not be taken to be a formal waiver of Eldarion's rights and that those rights or remedies will still be available to Eldarion.
15.6 Eldarion shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
15.7 The Terms, and your relationship with Eldarion under the Terms, shall be governed by the laws of the State of New Hampshire without regard to its conflict of laws provisions. You and Eldarion agree to submit to the exclusive jurisdiction of the courts located within the State of New Hampshire to resolve any legal matter arising from the Terms.
15.8 Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of your use of Habitualist upon written notice to the assigning party.