"Tomaxusa.com" is the interactive on-line service operated by Tomaxusa.com ("Tomaxusa.com") on the World Wide Web of the Internet, consisting of information services and content. "User" means each person who establishes or accesses a connection ("Account") for access to and use of Tomaxusa.com.
(A) This Agreement, which incorporates by reference other provisions applicable to use of Tomaxusa.com, including, but not limited to, supplemental terms and conditions set forth in paragraph 14 hereof ("Supplemental Terms") governing the use of certain specific material contained in Tomaxusa.com, sets forth the terms and conditions that apply to use of Tomaxusa.com by User. By using Tomaxusa.com (other than to read this Agreement for the first time), User agrees to comply with all of the terms and conditions hereof. The right to use Tomaxusa.com is personal to User and is not transferable to any other person or entity. User is responsible for all use of Userís Account (under any screen name or password) and for ensuring that all use of Userís Account complies fully with the provisions of this Agreement. User shall be responsible for protecting the confidentiality of Userís password(s), if any.
(B) Tomaxusa.com shall have the right at any time to change or discontinue any aspect or feature of Tomaxusa.com including, but not limited to, content, hours of availability, and equipment needed for access or use.
3. Changed Terms.Tomaxusa.com shall have the right at any time to change or modify the terms and conditions applicable to Userís use of Tomaxusa.com or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on Tomaxusa.com, or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use of Tomaxusa.com by User after such notice shall be deemed to constitute acceptance by User of such changes, modifications or additions.
User shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of Tomaxusa.com and all charges related thereto.
5. User Conduct.
(A) User shall use Tomaxusa.com for lawful purposes only. User shall not post or transmit through Tomaxusa.com any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without Tomaxusa.comís express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by a User that in Tomaxusa.comís discretion restricts or inhibits any other User from using or enjoying Tomaxusa.com will not be permitted. User shall not use Tomaxusa.com to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users to become users of other on-line information services competitive with Tomaxusa.com unless otherwise specified.
(B) Tomaxusa.com contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of Tomaxusa.com are copyrighted as a collective work under the United States copyright laws. Tomaxusa.com owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. User may download copyrighted material for Userís personal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of Tomaxusa.com and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. User acknowledges that it does not acquire any ownership rights by downloading copyrighted material.
(C) User shall not upload, post or otherwise make available on Tomaxusa.com any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with User. User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of Tomaxusa.com, User automatically grants, or warrants that the owner of such material has expressly granted Tomaxusa.com the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. User also permits any other User to access, view, store or reproduce the material for that Userís personal use. User hereby grants Tomaxusa.com the right to edit, copy, publish and distribute any material made available on Tomaxusa.com by User.
(D) The foregoing provisions of Section 5 are for the benefit of Tomaxusa.com, its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
6. Disclaimer of Warranty; Limitation of Liability.
(A) USER EXPRESSLY AGREES THAT USE OF TOMAXUSA IS AT USERíS SOLE RISK. NEITHER TOMAXUSA, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT TOMAXUSA WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF TOMAXUSA, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH TOMAXUSA.
(B) TOMAXUSA IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
(C) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. USER SPECIFICALLY ACKNOWLEDGES THAT TOMAXUSA IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH USER.
(D) IN NO EVENT WILL TOMAXUSA OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING Tomaxusa.com OR THE TOMAXUSA SOFTWARE, BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE TOMAXUSA. USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON TOMAXUSA.
(E) IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER, TOMAXUSA, NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN TOMAXUSA, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES. PRIOR TO THE EXECUTION OF A STOCK TRADE, USERS ARE ADVISED TO CONSULT WITH YOUR BROKER OR OTHER FINANCIAL REPRESENTATIVE TO VERIFY PRICING OR OTHER INFORMATION. TOMAXUSA, ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL HAVE NO LIABILITY FOR INVESTMENT DECISIONS BASED ON THE INFORMATION PROVIDED. NEITHER, TOMAXUSA, NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THIS INFORMATION. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION.
Tomaxusa.com shall have the right, but not the obligation, to monitor the content of Tomaxusa.com, including chat rooms and forums, to determine compliance with this Agreement and any operating rules established by Tomaxusa.com and to satisfy any law, regulation or authorized government request. Tomaxusa.com shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on Tomaxusa.com. Without limiting the foregoing, Tomaxusa.com shall have the right to remove any material that Tomaxusa.com in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
User agrees to defend, indemnify and hold harmless Tomaxusa.com, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneysí fees, arising out of the use of Tomaxusa.com by User or Userís Account.
Either Tomaxusa.com or User may terminate this Agreement at any time. Without limiting the foregoing, Tomaxusa.com shall have the right to immediately terminate Userís Account in the event of any conduct by User which Tomaxusa.com in its sole discretion, considers to be unacceptable, or in the event of any breach by User of this Agreement. The provisions of Sections 5(B), 5(C), 5(D), 6, 8, 10 and this Section 9 shall survive termination of this Agreement.
Tomaxusa.com and its logo is a trademark of Tomaxusa.com. All rights reserved. All other trademarks appearing on Tomaxusa.com are the property of their respective owners.
Tomaxusa.com reserves the right to change the contents, not excluding pricing, description, inventory, and other relevant information about the products/services contained herein, without notification to the User at any time. Since the contents of this site is updated frequently, Tomaxusa.com is not liable and User hereby indemnifies and agrees to accept a reasonable proportion of typographical error that may be present on the Tomaxusa.com site.
This Agreement and any operating rules for Tomaxusa.com constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of California, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
13. Copyrights and Copyright Agent.
Tomaxusa.com respects the rights of all copyright holders and in this regard, Tomaxusa.com has adopted and implemented a policy that provides for the termination in appropriate circumstances of users and account holders who infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Tomaxusa.comís Copyright Agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. í 512.
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. Information reasonably sufficient to permit us to contact the complaining party;
5. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
14. Supplemental Terms.
The structure, coding, and programming of the Tomaxusa.com web site is produced by Tomaxusa.com. The underlying foundation for the interactive/dynamic functions implemented throughout the Tomaxusa.com site is provided by a copyrighted software produced by Tomaxusa.com. No part of Tomaxusa.com site can be downloaded or transferred without the expressed written consent of Tomaxusa.com.