COBRAGuard, Inc.
For MyCobra.info
THIS TERMS AND CONDITIONS OF SERVICE AGREEMENT ("Agreement") is
made between ITEDIUM, Inc. (formerly known as COBRAGuard, Inc) and any person ("User") who uses, installs,
and/or accesses CobraGuards's online information access service ("Service"). CobraGuard and
User are collectively referred to as the "parties."
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR
INSTALLING ANY PART OF THE SERVICE, USER EXPRESSLY AGREES TO AND
CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, THE LIMITATIONS EXPRESSLY STATED IN
SECTION 4 (WARRANTIES), SECTION 5 (LIABILITY), AND SECTION 6
(INDEMNIFICATION). USER UNDERSTANDS THAT THIS AGREEMENT IS
ENFORCEABLE AGAINST USER LIKE ANY WRITTEN, NEGOTIATED AGREEMENT
SIGNED BY USER. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS
AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED,
COBRAGUARD WILL PROMPTLY CANCEL THIS TRANSACTION, AND USER MAY
NOT ACCESS, USE, OR INSTALL ANY PART OF THE SERVICE.
1. Service Terms
a. Description. User's use of the Service is limited to informational purposes only. The
Service is proprietary to CobraGuard and is protected by intellectual property laws and
international intellectual property treaties. User's access to the Service is licensed and not sold.
CobraGuard agrees to provide User with a personal, non-transferable and non-exclusive account
enabling User to access and use the Service. CobraGuard may terminate User's ability to access
and use the Service at any time and for any reason, or no reason at all.
b. Accessibility. User agrees that from time to time the Service may be inaccessible or
inoperable for any reason, including, without limitation: (i) equipment malfunctions;
(ii) periodic maintenance procedures or repairs which CobraGuard may undertake from time to
time; or (iii) causes beyond the control of CobraGuard or which are not reasonably foreseeable
by CobraGuard. User agrees that CobraGuard is not liable in any way for such inoperation or
inaccessibility.
c. Equipment. User shall be solely responsible for providing, maintaining and ensuring
compatibility with the Service, of all hardware, software, electrical and other physical
requirements for User's use of the Service, including, without limitation, telecommunications
and internet access connections and links, web browsers or other equipment, programs and
services required to access and use the Service.
2. Limitations
a. Security. User shall be solely responsible for the security, confidentiality and
integrity of all information that User accesses, receives, downloads, or otherwise views through
or takes from the Service. User agrees to bear all responsibility for the confidentiality of User's
password and all use of the Service with User's password. User shall be solely responsible under
the terms of this Agreement and otherwise for any authorized or unauthorized access to User's
account by any person.
b. Privacy. CobraGuard collects, stores, and uses data collected from User in
accordance with CobraGuard's Privacy Policy, located at www.cobraguard.net/privacy.html.
c. Internet. User has no expectation of privacy with respect to the Internet generally.
User understands and agrees that the use of or connection to the Internet is inherently unsecure
and that connection thereto allows potentially unauthorized access to User's computer systems,
networks, and stored information by third parties. Any and all information transmitted and
received through an Internet connection may be intercepted, diverted, corrupted, lost, accessed,
and/or disclosed by unauthorized third parties. User assumes responsibility and liability for any
and all adverse consequences resulting from such unauthorized use by third parties.
3. Prohibited Uses
User is solely responsible for any and all acts and omissions that occur under User's
account or password, and User agrees not to engage in unacceptable or unlawful use of the
Service, which includes, without limitation, use of the Service to: (a) disseminate, store or
transmit unsolicited messages, chain letters or unsolicited commercial email; (b) disseminate or
transmit material that, to a reasonable person may be abusive, obscene, pornographic,
defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (c) disseminate, store
or transmit files, graphics, software or other material that actually or potentially infringes the
copyright, trademark, patent, trade secret or other intellectual property right of any person;
(d) create a false identity or to otherwise attempt to mislead any person as to the identity or
origin of any communication; (e) export, re-export or permit downloading of any message or
content in violation of any export or import law, regulation or restriction of the United States and
its agencies or authorities, or without all required approvals, licenses or exemptions; (f) interfere,
disrupt or attempt to gain unauthorized access to other accounts on the Service or any other
computer network; (g) disseminate, store or transmit viruses, trojan horses or any other malicious
code or program; or (h) engage in any other activity deemed by CobraGuard to be in conflict
with the spirit or intent of this Agreement. By entering a username and password and thereby
attempting to access the Service, User warrants that User is authorized to view the private and
confidential information corresponding with the username entered. Viewing or attempting to
view information provided by the Service that User is not authorized to view is prohibited.
4. Disclaimer of Warranties
THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND,
EXPRESS, IMPLIED, OR OTHERWISE. USE OF THE SERVICE IS AT USER'S SOLE
RISK. COBRAGUARD DOES NOT WARRANT THAT THE SERVICE WILL BE
UNINTERRUPTED OR ERROR FREE, NOR DOES COBRAGUARD MAKE ANY
WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE
SERVICE. COBRAGUARD MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO
THE SERVICE. COBRAGUARD MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR
OTHERWISE, CONCERNING THE ACCURACY OF THE INFORMATION DISPLAYED
TO USER BY USER'S USE OF THE SERVICE. THE SERVICE IS PROVIDED FOR
INFORMATIONAL USE ONLY, AND THE INFORMATION THEREIN IS NOT INTENDED
TO BE RELIED ON IN ANY WAY. USER AGREES THAT USER RELIES ON THE
INFORMATION DISPLAYED BY THE SERVICE AT USER'S OWN RISK.
5. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COBRAGUARD BE LIABLE TO USER OR
ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR
RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET GENERALLY,
INCLUDING, WITHOUT LIMITATION, USER'S USE OR INABILITY TO USE THE
SERVICE, THE ACCURACY OF ANY DATA OR INFORMATION ACCESSED THROUGH
THE SERVICE OR RELIANCE BY USER OR ANY OTHER PARTY ON SUCH
INFORMATION, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY,
FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION
OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR
RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE
SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR
THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS
OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COBRAGUARD'S
TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY
USER TO COBRAGUARD HEREUNDER, IF ANY. SOME STATES PROHIBIT THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES,
THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS
DISSATISFIED WITH THE SERVICE, USER'S SOLE AND EXCLUSIVE REMEDY SHALL
BE FOR USER TO DISCONTINUE USE OF THE SERVICE.
6. Indemnification
USER AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND
COBRAGUARD, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS FROM AND AGAINST ANY ACTION, CAUSE, CLAIM, DAMAGE, DEBT,
DEMAND OR LIABILITY, INCLUDING REASONABLE COSTS AND ATTORNEY'S
FEES, ASSERTED BY ANY PERSON, ARISING OUT OF OR RELATING TO: (A) THIS
AGREEMENT; (B) USER'S USE OF THE SERVICE, INCLUDING ANY DATA OR WORK
TRANSMITTED OR RECEIVED BY USER; (C) UNAUTHORIZED USE OF THIS SERVICE
BY ANY RELATED OR THIRD PARTY OF WHOM USER IS MADE RESPONSIBLE BY
THIS AGREEMENT OR OTHERWISE; AND (D) ANY UNACCEPTABLE USE OF THE
SERVICE, INCLUDING, WITHOUT LIMITATION, ANY STATEMENT, DATA OR
CONTENT MADE, TRANSMITTED OR REPUBLISHED BY USER WHICH IS
PROHIBITED AS UNACCEPTABLE AT SECTION 3.
7. Miscellaneous
a. Independent Contractors. The parties and their respective personnel, are and shall be
independent contractors and neither party by virtue of this Agreement shall have any right,
power or authority to act or create any obligation, express or implied, on behalf of the other
party.
b. Waiver. No waiver of any term, provision or condition of this Agreement, whether
by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute,
a waiver of any other term, provision or condition hereof by CobraGuard, whether or not similar,
nor shall such waiver constitute a continuing waiver of any such term, provision or condition
hereof by CobraGuard. No waiver shall be binding on CobraGuard unless executed in writing by
CobraGuard.
c. Severability. If any provision of this Agreement is determined to be illegal or
unenforceable, then such provision will be enforced to the maximum extent possible and the
other provisions will remain fully effective and enforceable.
d. Law. This Agreement is made in and shall be governed by the laws of the State of
Kansas without reference to conflicts of laws.
e. Forum. All actions, claims or disputes arising under or relating to this Agreement
shall be brought in the federal or state courts exercising jurisdiction over Johnson County,
Kansas. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction
and personal jurisdiction over each of the parties by the federal and/or state courts exercising
jurisdiction over Johnson County, Kansas. The parties hereby irrevocably waive any and all
objections which any party may now or hereafter have to the exercise of personal and subject
matter jurisdiction by the federal or state courts exercising jurisdiction over Johnson County,
Kansas, and to the laying of venue of any such suit, action or proceeding brought in any such
federal or state court exercising jurisdiction over Johnson County, Kansas.
f. Process. The parties irrevocably submit and consent, and irrevocably waive any and
all objections which any party may now or hereafter have, to process being served in any such
suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the
applicable court, including, without limitation, service by certified or registered mail, return
receipt requested. No provision of this section shall affect the right of any party to serve process
in any manner permitted by law or limit the right of any party to bring suits, actions or
proceedings to enforce in any lawful manner a judgment issued by the state or federal courts
exercising jurisdiction over Johnson County, Kansas.
g. Attorney's Fees. If any action in law or in equity is necessary to enforce the terms of
this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants,
and other professionals, and costs and expenses in addition to any other relief to which such
prevailing party may be entitled.
h. Headings. The captions and headings of this Agreement are included for ease of
reference only and will be disregarded in interpreting or construing this Agreement.
i. Force Majeure. If the performance of any part of this Agreement by either party is
prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire,
judicial or governmental action, labor disputes, act of God or any other causes beyond the
control of either party, that party shall be excused from such to the extent that it is prevented,
hindered or delayed by such causes.
j. Survival. The terms and provisions of Sections 2, 3, 4, 5, 6, and 7 shall survive any
termination or expiration of this Agreement.
k. Entire Agreement. This Agreement constitutes the complete and exclusive statement
of the agreement between the parties with respect to the Service and supersedes any and all prior
or contemporaneous communications, representations, statements and understandings, whether
oral or written, between the parties concerning the Service. This Agreement cannot be modified,
altered, or amended unless any such modification, alteration, or amendment is made in writing
by an authorized employee or officer of CobraGuard. User hereby agrees that any verbal
representations made by any CobraGuard employees or agents shall not modify or be
incorporated into this Agreement, and any such verbal representations shall be of no effect.
USER HAS READ, UNDERSTANDS AND AGREES TO THE TERMS & CONDITIONS OF THIS AGREEMENT.