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Simutronics Corporation ("Simutronics") agrees to provide
you ("User") access to the use of Simutronics Online Games
and those electronic bulletin boards, chat areas, software and graphics libraries,
games and other computer services which Simutronics may occasionally offer (collectively,
referred to herein as "Services"), under and subject to the
terms and conditions stated herein. User is responsible for obtaining the equipment,
Internet service provider, software and telephone services which are necessary
for accessing and using the aforementioned Services.
2. Entire Agreement; Amendments
This agreement (the "Agreement") comprises the entire agreement
between Simutronics and User, and supersedes any prior agreements between User
and Simutronics with respect to the subject matter hereof. This Agreement does
not supersede any additional terms and conditions of which User is notified by
Simutronics and/or which may apply when using third party content, software or
services. Simutronics may amend or revise this Agreement at any time and at its
sole discretion, and such amendment or revision shall be effective upon posting
of such revised agreement on the Simutronics web site (the "Web Site").
User hereby agrees to review this Agreement by accessing the Website periodically
to become aware of any such revisions. If any revision is unacceptable to User,
this Agreement may be terminated by User as provided in Section 8 hereof. Continued
use of the Services following posting of the revised Agreement shall be deemed
to be acceptance of all such revisions.
3. Account Information
USER HEREBY CERTIFIES THAT HE/SHE IS AT LEAST EIGHTEEN (18) YEARS OLD. User agrees
to provide Simutronics with valid, complete and updated (as applicable) registration
information. Failure to do so will constitute a breach of this Agreement, and
any subsequent access to Services by User will be considered invalid and unauthorized.
Unauthorized access to any Services may result in immediate termination of User's
account and will subject User to civil and criminal liability. When registering
for any Service, User will select a password (the "Password").
User shall be solely responsible for maintaining the confidentiality of the Password
and shall be liable for any damages resulting from disclosing or allowing disclosure
of such Password or from the use, authorized or unauthorized, by any person of
such Password to gain access to User's account. For security reasons, Simutronics
recommends that User
change the Password
often. At NO TIME should User respond to an online request for
the Password. Former Simutronics Users' whose accounts have been terminated
by Simutronics may not access the Services in any manner without the express written
(which shall be deemed to include authorization via email) permission of Simutronics.
User shall not knowingly allow a former member who has been terminated to utilize
his/her active account to access the Services.
4. Charges
Current rates and surcharges for using the Services may be obtained by accessing
the appropriate billings, section of the Website. Simutronics may change its fees
and billing methods at any time and at its sole discretion effective upon thirty
(30) days' prior notice, which notice shall be posted in the billing section
of the Website. All changes will be posted online, and User is responsible for
periodically reviewing posted pricing information and for keeping current with
any changes. If any such change is unacceptable to User, User may terminate his/her
Simutronics service account as provided in Section 8 hereof. User's continued
use of the Services following any posted billing change shall be deemed acceptance
of such change. User's monthly membership fees are non-refundable in whole
or in part. User shall be responsible for any and all Internet service provider
access charges incurred while connecting to the Services. Each time User accesses
the Services, User agrees and reaffirms that Simutronics is authorized, as applicable,
to charge User's designated credit or debit card. All charges are exclusive
of sales tax. Charges are to be paid monthly by User in the currency in which
they were billed. If User's use of the Services is subject to use or sales
tax, as provided by local, state, national or international law, then Simutronics
may pass the amount of any such taxes on to User. Unless expressly authorized
by Simutronics, User may not use the same credit card or debit card to open multiple
Service accounts. Only one User per Service account may use the Services at any
given time.
5. Disclaimer of Warranty
To the maximum extent allowed by law, Simutronics hereby disclaims any and all
warranties relating to connection to, transmission over, or results or use of,
any network connection or facilities provided (or the failure of such to be provided)
through the Services. User is solely responsible for assessing his/her own computer
transmission network needs, and obtaining suitable service from a third party
to fulfill such needs. USER EXPRESSLY AGREES THAT USE OF THE SERVICES, ALL SOFTWARE
DISTRIBUTED BY SIMUTRONICS AND THE INTERNET ARE AT USER'S SOLE RISK. THE
SERVICES AND ANY SOFTWARE DISTRIBUTED BY SIMUTRONICS ARE PROVIDED ON AN "AS
IS" BASIS. SIMUTRONICS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING
FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE SERVICES, ALL
SOFTWARE DISTRIBUTED BY SIMUTRONICS AND THE INTERNET. SIMUTRONICS ASSUMES NO RESPONSIBILITY
FOR ANY DAMAGES SUFFERED BY USER, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA
FROM DELAYS, NONDELIVERIES, ERRORS, SYSTEM DOWN TIME, MISDELIVERIES OR SERVICE
INTERRUPTIONS CAUSED BY THE CONDUCT OR NEGLIGENCE OF SIMUTRONICS, ITS LICENSORS
AND SUBCONTRACTORS, OR USER'S OWN ERRORS AND/OR OMISSIONS. Simutronics makes
no warranty with respect to any related software or hardware used or provided
by Simutronics in connection with the Services. Any patent, trademark, trade secret
or warranty infringements, whether actual or alleged, are the sole responsibility
of the manufacturer of said hardware or software product, and Simutronics assumes
no responsibility for any actions, liabilities or damages arising from the possession
or use of these software or hardware products.
6. Limitation of Liability
USER ACKNOWLEDGES THAT SIMUTRONICS SHALL NOT ASSUME OR HAVE ANY LIABILITY FOR
ANY ACTION BY SIMUTRONICS OR ITS CONTENT PROVIDERSOR OTHER LICENSORS WITH
RESPECT TO CONDUCT, COMMUNICATION OR CONTENT OF THE SERVICES. SIMUTRONICS SHALL
NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL
DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH THE
SERVICES OR ANY PRODUCT PROVIDED BY SIMUTRONICS. SIMUTRONICS' ENTIRE LIABILITY
AND USER'S EXCLUSIVE REMEDY WITH RESPECT TO USE OF THE SERVICES AND ALL SOFTWARE
DEVELOPED BY OR FOR SIMUTRONICS SERVICES WHICH IS FOUND TO BE DEFECTIVE USING
MEDIA CHOSEN BY SIMUTRONICS SERVICES SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE
TOTAL AMOUNT PAID BY USER FOR THE DEFECTIVE SERVICE LESS AN AMOUNT EQUAL TO THE
VALUE OF THE SERVICE FOR THE TIME THAT IT OPERATED PROPERLY. SIMUTRONICS' LIABILITY
TO USER FOR ANY AND ALL BREACHES OF THIS AGREEMENT IS LIMITED SOLELY TO THE TOTAL
CUMULATIVE AMOUNT PAID BY USER TO ACCESS AND USE THE SERVICES. IN STATES WHICH
DO NOT ALLOW AN EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SIMUTRONICS'
LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. Indemnification
User agrees to indemnify and hold harmless Simutronics from all liabilities, damages,
costs and expenses, including, without limitation, attorneys' fees, arising from
or related to any breach of this Agreement by User, or in connection with transmissions
by or through User's Service account. Simutronics reserves the right, at
User's expense, to assume the exclusive defense and control of any matter
subject to indemnification by User hereunder, and in such event, User shall have
the obligation to provide indemnification for such matter and reimbursement of
all reasonable attorneys' fees incurred by Simutronics in defending such
claim.
8. Termination
Either User or Simutronics may terminate User's subscription to the Services
at any time. User's sole and exclusive recourse with respect to dissatisfaction
with any: (a) Agreement term, policy or practice of Simutronics in operating the
Services, (b) Content available through the Services or change therein, or (c)
Amount or type of fees or billing methods or a change therein, shall be termination
of User's subscription to the Services by notifying Simutronics Billing,
as provided below, of User's desire to so terminate and by confirming such
request in writing or electronically if requested to do so by Simutronics. User's
notice of termination will be effective upon receipt by Simutronics or upon receipt
of User's written confirmation by Simutronics if confirmation is so requested.
If User's Services account is terminated or canceled, no refund of any fees,
including monthly membership fees, will be granted to User, and any online time
credited to User's account shall not be convertible to cash or other form
of credit.
To cancel a game, or all Services in their entirety, User may:
Send an email to billing@simutronics.com which
specifies the nature of the cancellation request.
Or request cancellation by US Mail to:
Simutronics Corporation
218-C Millwell Drive
Maryland Heights, MO 63043
Any event which causes an inactive user to become an active one may cause a
subscription fee to be imposed if the user has not paid a subscription fee in
the last month.
9. General
This Agreement is not assignable by User. It is governed by the law of the Commonwealth
of Virginia, excluding any conflict-of-laws rules. Each party waives the right
to a jury trial in any lawsuit or action based upon or arising out of this Agreement.
This Agreement contains the complete and exclusive understanding of the parties
with respect to the subject matter hereof. No waiver, alteration, or modification
of any of the provisions hereof will be binding unless made in accordance with
the provisions of Section 2 hereof., or unless expressly agreed to in a writing
signed by both parties. User may not use, copy, modify, sublicense, rent, sell,
assign or transferrights and privileges granted pursuant to this Agreement,
or the Services, except as expressly provided in this Agreement. Any assignment
in violation of this Agreement shall be void. If any provision of this Agreement
is held to be unenforceable for any reason, such provision shall be reformed only
to the extent necessary to make it enforceable, and such decision shall not affect
the enforceability; (i) of such provision under other circumstances, or (ii) of
the remaining provisions hereof under all circumstances. The paragraph headings
contained in this Agreement are for the purposes of convenience only and are not
intended to define or limit the contents of said paragraphs. Simutronics and User
are independent contractors under this Agreement. Simutronics' failure to enforce,
at any time, any of the provisions of this Agreement shall in no way be construed
to be a present or future waiver of such provisions, nor in any way affect the
right of either party to enforce each and every such provision thereafter. The
express waiver by Simutronics of any provision, condition or requirement of this
Agreement shall not constitute a waiver of any future obligation to comply with
such provision, condition or requirement. Notwithstanding anything else in this
Agreement, no default, delay or failure to perform on the part of Simutronics
shall be considered a breach of this Agreement if such default, delay or failure
to perform is shown to be due to causes beyond the reasonable control of Simutronics.
10. Unacceptable Conduct
(a) User may not engage in any conduct or communication while using the Services
which is unlawful or which restricts or inhibits any other User from using or
enjoying the Services. User agrees to use the Services only for lawful purposes.
Simutronics reserves the right to terminate User's membership if it determines,
in its sole discretion, that User has engaged in unacceptable conduct. The list
of prohibited conduct set forth in Subsection (b) below provides examples of unacceptable
conduct, which list is not exhaustive, and Simutronics reserves the right, but
not the responsibility, to restrict conduct which Simutronics deems, in its sole
discretion, to be harmful to individual members, damaging to the Services, or
in violation of Simutronics' or any third party's rights. Simutronics may prohibit
or delete conduct, communication or content transmitted on Simutronics services
that is deemed to be in violation of applicable laws or is harmful to other members,
the Simutronics service community or the rights of Simutronics in general. User
acknowledges, however, that communication over the Services often occurs in real-time
and Simutronics cannot, and does not intend to, screen communication in advance.
YOU MAY NOT USE THE SERVICES TO:
Harass, threaten or embarrass another User of the Services or to
cause distress, unwanted attention or discomfort of such User, or any other
person or entity. Simutronics does not condone harassment in any
form and may suspend or terminate the account of any User who harasses others.
Personal attacks, such as those based on a person's race, national origin,
ethnicity, religion, gender, lifestyle choice, disablement or other such affiliation,
are strictly prohibited.
Post or transmit sexually explicit images, or point or reference to such
images. Simutronics prohibits the transfer or posting of sexually explicit
images or other content deemed offensive.
Transmit any unlawful, harmful, threatening, abusive, harassing,
defamatory, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable
content. If User engages in vulgar or abusive language online, even
if masked by symbols or other characters, or engages in other impermissible
behavior, User may receive a warning, or be temporarily or permanently excluded
from one or more games, bulletin boards, chat areas, or User's membership
may be terminated immediately and User may be subject to civil liability and/or
prosecution by law enforcement authorities.
Scroll or carry out any action with a similar disruptive effect.
"Scrolling" is defined as repeatedly causing the screen to
roll faster than Users are able to type onto it.
Impersonate any person, including, but not limited to, Simutronics'
employees, monitors or hosts. User shall not hold himself or herself
out or portray himself or herself as a Simutronics staff member or employee
while engaging in all forms of online communication, including, but not limited
to, member names, member profiles, voice, text or graphic chat, message postings
or any form of communication on line. Impersonation of Simutronics staff shall
be grounds for immediate account termination.
Engage in "disruptive behavior" in chat areas, game areas,
bulletin boards, or any other area of the Services. Disruptive behavior
shall be deemed to include, but will not be limited to, conduct which purposefully
interferes with the normal flow of dialogue in a Service area. Disruptive
behavior shall also include, but not be limited to, commercial postings, solicitations
and advertisements.
Post or transmit chain letters or pyramid marketing schemes.
This type of material places an unnecessary load on the Services and is considered
a nuisance by many members. Certain types of chain letters and pyramid schemes
are also illegal. Such prohibited conduct includes, but is not limited to,
the transmission of letters or messages which offer a product or service and
which are based on the structure of a chain letter.
Posting or transmitting unsolicited advertising, promotional materials,
or other forms of solicitation. Simutronics services are not to be used
to send unsolicited advertising, promotional material, or other forms of solicitation
to other members. You may not use Simutronics services to collect or "harvest"
member names without the express permission of those members. Simutronics
reserves the right to block and/or filter mass email solicitations on or through
the service.
Violate any operating rule, policy or guideline of any other online
service. User further agrees to abide by the rules of User's
Internet service provider.
Violate, intentionally or unintentionally, any applicable local,
state, national or international law or regulation.
Modify any files which Simutronics does not specifically authorize
User to modify. Use of material which is subject to the rights of
any person or entity without the express permission of such rights holder
is prohibited, and will result in the termination of User's membership
and possible civil and/or criminal liability.
Post to many bulletin boards at once and/or send multiple unsolicited
emails to a single address, sometimes referred to as "spamming,"
is prohibited. Simutronics may take action on User's account
if any of the following offenses is reported: (a) Posting a similar or
identical message to more than 5 bulletin boards; (b) Sending unsolicited
mail to more than 25 people or (c) Sending more than two (2) unsolicited
emails to a single email address. Repeated spamming will result in account
termination.
In certain situations, the overall pattern of behavior on an account or a set
of linked accounts may be determined to be disruptive or abusive, even if no
one single act clearly violates any specific policy. In such cases, Simutronics
reserves the right to determine what patterns of behavior are defined as "high-maintenance"
or "disruptive" and may take action against the account(s), ranging
from a simple request to moderate the high-maintenance behavior, to total lockout
of all linked accounts.
11. Copyright Rules and Regulations
User acknowledges that Simutronics permits access to content that is protected
by copyright, trademark, and other intellectual and proprietary rights. User
also acknowledges that such rights are valid and protected in all media and
technologies existing now or later developed, and unless expressly provided
otherwise, this Agreement and any applicable copyright laws govern User's
use of the content of the Services.
User agrees to upload to software libraries, message boards, or to transmit
on or through the Services only that content which is not subject to copyright
laws, or which any holder of copyright or other proprietary rights has given
express authorization for distribution on the Services. User represents
that
if User uploads any files, he or she shall have the prior legal authorization
to do so. By submitting such content to any "public area" of the
Services, User grants Simutronics and its affiliates the royalty-free,
perpetual,
irrevocable, exclusive right and license to use, reproduce, modify, adapt,
publish, translate, create derivative works from, distribute, communicate
to the public, perform and display such content (in whole or in part) worldwide
and/or to incorporate it in other works in any form, media or technology
now
known or later developed, for the full term of any rights that may exist
in such content. User also warrants that the holder of any rights with
respect
to such content has completely and effectively waived all such rights and
validly and irrevocably granted to User the right to grant the license
stated
above. User also permits any other authorized User's of Services to access,
display, view, store and reproduce the content for personal use.
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