BY ACCESSING OR USING ANY OF THE SITES OR ANY PART OF THE SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THIS AGREEMENT, WHICH CONTAINS AN ARBITRATION AGREEMENT AND WAIVER OF CLASS-ACTION RIGHTS. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS ANY SITE OR USE ANY SERVICE.
This Agreement supplements, but does not supplant, any terms which governed your use of any of the Sites or any Services as of the Effective Date; provided, however, that if there is a conflict between this Agreement and such terms, this Agreement will control.
Some Services are subject to additional terms, which are presented to when you use or create an account to use such Services. If there is a conflict between these terms and the additional terms for a particular Service, the additional terms will control for that Service. Do not use any Services subject to additional terms unless you agree to the terms of this Agreement and those additional terms.
Using the Sites and the Services.
Grant of Rights. Subject to your compliance with the terms and conditions of this Agreement, Fifth Gear grants you a limited, non-exclusive right to use the Sites and the Services, and any content and materials made available to you in connection with your use of the Sites or the Services, only for informational purposes, subject to the further limitations provided in this Agreement, any additional terms applicable to a particular Service, or any instructions for use that Fifth Gear may provide from time to time.
Accounts and Access. To use certain Services, you must create an account accessible through a username and password. You are solely responsible for keeping your password confidential and for all use of your username and password, including, without limitation, any use by any unauthorized third party. Fifth Gear employees will never ask for your password. If you are asked for your password, or if you believe someone may have obtained your password, please contact Fifth Gear. You are responsible for any internet access, hardware, or software that is necessary or appropriate to facilitate your use of or access to the Sites or Services.
Termination. You may stop accessing or using the Sites or the Services at any time. Fifth Gear may terminate your access to the Sites or the Services in whole or in part if it reasonably believes you have breached any of the terms and conditions of this Agreement. Following termination, you will not be permitted to access the Sites or use the Services. If your access to the Sites or the Services is terminated, Fifth Gear may exercise whatever means it deems necessary to prevent unauthorized access to the Sites or the Services, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet service provider. This Agreement will survive indefinitely unless and until Fifth Gear chooses to terminate it, regardless of whether any account you open is terminated by you or Fifth Gear or whether you continue to use or continue to have the right to use the Sites or the Services.
Intellectual Property Rights. Using the Sites or the Services does not give you ownership of or any rights to any materials or content that may be provided to you in connection with your use of the Sites or the Services, all of which is owned by Fifth Gear, its licensors, or other entities and is protected by copyright and other intellectual property rights. You shall not use, display, perform, copy, reproduce, represent, adapt, create derivative works from, distribute, transmit, sublicense or otherwise circulate or make available by any means whatsoever any materials or content made available to you in connection with your use of the Sites or the Services, without express permission from the owner, except as expressly set forth in this Agreement or any additional terms applicable to a particular Service. Using the Sites or the Services does not give you any rights to use any trademarks, service marks, trade dress, trade names, or the like, used in connection with the Sites or the Services, without express permission from the owner.
Your Feedback. If you submit ideas, suggestions or anything else about the Sites or Services (such as ways to improve any of the Services) to Fifth Gear, you agree that Fifth Gear can use that feedback for any reason, without payment or other compensation to you, forever and throughout the world. Do not submit any feedback to Fifth Gear in which you do not wish to grant such rights.
Third Party Websites and Content. Fifth Gear may provide access to third party websites, materials or other third party information. Your use of such third party websites, materials or other information will be subject to those terms to which you and the third party agree. Fifth Gear may use third party materials or other third party information in providing the Services to you. You agree that Fifth Gear is not responsible for any third party materials or other information, whether such materials are accessed directly by you or used by Fifth Gear in providing the Services, including whether the information is accurate or whether the information is suitable for your use or use in connection with the Services. You agree that Fifth Gear is not responsible for whether third party information accessed by you is available for your use, for the performance or operation of any third party website, for any products or services advertised or sold by any third party (including on or through a third party’s website), or for any other action or inaction by any third party.
. In your use of the Sites or the Services, you may use the Sites or the Services and any materials or content made available to you in connection with your use of the Sites or the Services only as expressly permitted by this Agreement or any additional terms applicable to a particular Service, and, without limiting the foregoing, in no event shall you, in your use of the Sites or the Services or any materials or content made available to you in connection with your use of the Sites or the Services: (i) infringe, violate, or transgress any right of any party; (ii) disrupt or interfere with the security, user authentication, provision or use of the Sites or the Services; (iii) interfere with or damage the Sites or the Services; (iv) impersonate another person or entity, misrepresent your affiliation with a person or entity (including Fifth Gear), or use a false identity; (v) attempt to obtain unauthorized access to the Sites or the Services; (vi) engage, directly or indirectly, in transmission of “spam,” chain letters, junk mail or any other type of unsolicited solicitation; (vii) collect, manually or through an automatic process, information about other users without their express consent or other information relating to the Sites or the Services; (viii) submit false or misleading information to Fifth Gear; (ix) violate any law, rule, or regulation; (x) engage in any activity that interferes with any third party’s ability to use or enjoy the Sites or the Services; (xi) frame portions of the Sites within another website [or establish links from any other website to any portion of the Sites]; or (xii) assist any third party in engaging in any activity prohibited by this Agreement. [Note: Please let us know if you would like to permit limited hyperlinks, e.g., to the home page.]
Changes. Fifth Gear may change or discontinue any of the Sites or the Services at any time without liability to you or any third party. Fifth Gear may modify this Agreement at any time. Notification of modifications to this Agreement will be made available via the Sites or the Services. Modifications will become effective fourteen days after they are posted, unless a different effective date is provided in the notice of modification or applicable law requires earlier application. If you do not agree to the modified terms for a Site or a Service, you must discontinue your use of that Site or Service.
Infringement of Rights. Fifth Gear respects your rights. If you believe any third party is infringing your rights or misappropriating your confidential information by such third party’s use of or access to the Sites or Services, please contact us.
DISCLAIMERS, EXCLUSIONS, LIMITATIONS, AND INDEMNITY.
DISCLAIMER OF WARRANTIES.
FIFTH GEAR PROVIDES THE SITES AND THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIFTH GEAR DOES NOT REPRESENT OR WARRANT THAT THE SITES, THE SERVICES, THEIR USE, ANY INFORMATION PROVIDED IN CONNECTION WITH THE SITES OR THE SERVICES: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. FIFTH GEAR MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. FIFTH GEAR MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY THIRD PARTY MATERIALS, INFORMATION, GOODS, OR SERVICES, WHETHER RECEIVED OR ACCESSED VIA ANY LINKS PROVIDED BY OR IN CONNECTION WITH THE SITES OR SERVICES, USED BY FIFTH GEAR TO PROVIDE THE SERVICES, OR OTHERWISE. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
EXCLUSION OF DAMAGES
. FIFTH GEAR WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SITES OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
LIMITATION OF LIABILITY
. IN NO EVENT WILL THE AGGREGATE LIABILITY OF FIFTH GEAR ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE SITES, OR THE SERVICES EXCEED THE AMOUNT PAID FOR THE SERVICES.