Last Updated: May 15, 2012
By accessing the Inktank / Ceph websites and associated services, you indicate that you agree to these Terms of Service.
These terms help us protect our community from those who misuse our services or mistreat others. Accordingly, in order to participate in the community, you must agree to abstain from prohibited conduct, such as uploading content that violates the law, abuses others, or contains malicious software.
The information you transmit to our service still belongs to you. However, you must agree to grant us a license to use it in the normal operation of our service. If you contribute source code to the Ceph project, you must agree that it will be licensed under LGPLv2 or the MIT License, as applicable, so that the entire community can benefit from it. If you contribute documentation, it will be licensed under Creative Commons Share-Alike with Attribution.
The complete Terms of Service for Inktank / Ceph websites and associated services are set forth below.
The following Terms of Service apply to all users of the Inktank.com and Ceph.com websites and associated infrastructure, application program interface(s) (“API”), content, trademarks and other associated materials and properties (collectively, the “Service”), which is provided to you by Inktank Storage, Inc. (“Inktank”). The following Terms of Service is a legal contract between you, an individual user or a single entity (collectively or individually “Users”) and Inktank regarding your use of the Service. Together, Users and Inktank are each referred to herein individually as a “Party” or collectively as the “Parties.” When using the Service, you will be subject to any additional posted guidelines, policies or rules applicable to specific services and features which may be posted from time to time (collectively, the “Policies”). All Policies are hereby incorporated by reference into these Terms of Service.
BEFORE USING THE SERVICE, PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR AND/OR ACCESSING, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING THE POLICIES, AND ANY FUTURE MODIFICATIONS THERETO (COLLECTIVELY, THE “TERMS OF SERVICE” OR “TERMS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SERVICE.
1. Eligibility. In order to use the Service, you must either be the age of majority in your jurisdiction, an emancipated minor, or possess legal parental or guardian consent, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. You represent that you meet the eligibility requirements in this Section. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are accepting these Terms on behalf of an entity you represent to us that you have legal authority to bind that entity.
3. Modification of the Terms. Inktank reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time for any reason, and we may notify you of such changes through any of a variety of means, including a change to the “Last Updated” date set forth above and other reasonable means to be determined at our discretion. All changes shall be effective immediately. In the event of a material change that may directly affect your account, we will notify you via the most recent e-mail address that you have provided to us in conjunction with your account. Please check these Terms periodically for changes. Your continued use of the Service after the posting of changes constitutes your binding acceptance of such changes.
4. Permitted Use. Inktank grants you permission to use the Service as set forth in these Terms, provided that and for so long as (i) you use the Service solely for your personal or internal business use; (ii) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of the Service in any medium without Inktank’s prior written authorization; (iii) you do not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purposes; (iv) you do not engage in any of the prohibited uses described in these Terms or the Policies; (v) you ensure that you do not use the Service in violation of any applicable laws and regulations (including without limitation the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control); and (vi) you otherwise fully comply with these Terms and the Policies. The Service is controlled and offered by Inktank from its facilities in the United States of America. Inktank makes no representations that the Service is appropriate or available for use in other locations. If you are accessing or using the Service from other jurisdictions, you do so at your own risk and you are responsible for compliance with local law.
5. Ownership; Proprietary Rights. As between the Parties, the Service including the API, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service that are provided by Inktank (“Inktank Materials”) are owned and/or licensed by Inktank. Inktank Materials do not include Contributed Content (as defined below). Except as expressly authorized by Inktank, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Service or the Inktank Materials. Inktank reserves all rights not expressly granted in these Terms. You shall not acquire any right, title, or interest to the Inktank Materials, except for the limited rights set forth in these Terms. Some Inktank Materials are licensed under a separate license, such as the GNU Lesser General Public License, version 2.1, the MIT License, or other open source license, as applicable. If you contribute documentation, it will be licensed under Creative Commons Share-Alike with Attribution. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the applicable Inktank Materials.
6. User Content.
(a) General. The Service enables you to store digital content, including software applications, data, media, text, audio and video recordings, photos, graphics or other information or content (collectively, “User Content”), and to host and/or share such User Content. User Content is not controlled by Inktank. These Terms of Service apply to any and all User Content that is contributed to the Service, regardless of whether contributed to any area of the website for the Service, or contributed to any third party service used in conjunction with the Service, such as GitHub.
(b) Ownership; Grant of Rights. As between the Parties, you own all right, title, and interest in and to your User Content. You hereby authorize and grant us a license to use your User Content to provide the Service to you and to reproduce and display any User Content you contribute to any public areas of the Service. We may disclose Your Content to provide the Service to you or to comply with any request of a governmental or regulatory body (including subpoenas or court orders). Notwithstanding the foregoing, any User Content in a form of source code that you submit to any public areas of the website for the Service or otherwise in connection with the Service with the intention of contributing same to the Ceph project will be governed by the terms of the GNU Lesser General Public License, version 2.1or the MIT License, as applicable. By submitting User Content to the public areas of the Service, you hereby grant Inktank and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, perform, and otherwise exploit your User Content in connection with the Service. You also agree not to assert against Inktank or any other users of the Services any claims based on any legally recognized and protectable moral rights with respect to your User Content, including the right of attribution or otherwise. You also hereby grant to each user of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Content as permitted by the functionality of the Service and these Terms. The above licenses granted by you in User Content you submit to the Service shall be perpetual and irrevocable, except that with respect to any User Content that you have removed or deleted while maintaining your user account, or any User Content following any deactivation or deletion of your user account, you may specifically notify Inktank regarding the termination of the foregoing license from you to Inktank, specifically identifying the item(s) of User Content to which such termination applies, in which case the foregoing license will terminate within a commercially reasonable time after you provide such notice to Inktank. You understand and agree, however, that even following such termination, Inktank may retain, but not display or perform, server copies of such User Content. Notwithstanding anything to the contrary herein, the above licenses granted by you in user comments you submit are perpetual and irrevocable.
(c) Your Representations and Warranties Regarding User Content. You shall be solely responsible for your User Content and the consequences of using such Content in connection with the Service. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Inktank to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable the use of User Content in connection with the Service, and to grant the rights and license set forth in Section 6(b), and (ii) your User Content, Inktank’s possession of such User Content in connection with the Service, and Inktank’s exercise of the license rights set forth in Section 6(b), do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate these Terms, any Policy or any applicable law or regulation.
(d) Prohibited Uses of User Content. Except as otherwise permitted by these Terms, in connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the Service: (i) any falsehoods or misrepresentations that could damage Inktank or any third party; (iii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, lewd, lascivious, obscene, abusive, profane, vulgar, sexually explicit, threatening, excessively violent, harassing, harmful, hateful, racially or ethnically offensive, which endorses or promotes physical harm of any kind against another group or individual, discriminates, incites harassment or advocates harassment of any group or individual, which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise objectionable or inappropriate; (iv) advertisements or solicitations of business, products, or services; or (v) any material that would be harmful to minors in any manner.
(e) No Responsibility for User Content. With the exception of the limited license granted under Section 6(b), we do not obtain or control any rights in, and do not exert editorial control over, User Content. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to User Content.
7. Non-Monitoring of Users and User Content. You understand that you, and not Inktank, are entirely responsible for all User Content that you upload, transmit or otherwise make available through the Service. Inktank does not control User Content and does not have any obligation to monitor User Content for any purpose. If at any time Inktank chooses, in its sole discretion, to monitor the User Content, Inktank nonetheless assumes no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, and no responsibility for the conduct of the User or any other person or entity submitting any such User Content. You agree that you must evaluate, and bear all risks associated with the use of any User Content, including any reliance on the accuracy, completeness, usefulness, or legality of such User Content.
8. Removal of User Content. Inktank and its designees shall have the right (but not the obligation) in their sole discretion to refuse the uploading or transmission to, or remove any User Content from the Service in whole or in part at any time if such User Content is determined by Inktank in its sole discretion to be in violation of these Terms or the Policies, with or without notice and with no liability of any kind.
9. Your Additional Obligations.
(a) User Content. You are solely responsible for your User Content, including without limitation its technical performance and operation and compatibility with the API, maintaining appropriate security, protection and backup of your User Content, such as the use of encryption technology to protect it from unauthorized access (in addition to those security measures implemented on the Service, as described on the website for the Service), any claims regarding your User Content, and the compliance of your User Content with these Terms, the Policies and all applicable laws and regulations. In connection with your use of the Service, you agree that you will (a) in connection with your use of the Service, comply with all applicable local, state, national, and international laws and regulations, including, without limitation, copyright and other laws protecting proprietary rights (including the DMCA, as defined in Section 18) and all applicable export control laws and regulations and country-specific economic sanctions implemented by the United States Office of Foreign Assets Control; (b) properly handle and process notices sent to you by any person claiming that your User Content violates such person’s rights, including notices pursuant to the DMCA; and (c) obtain and maintain all licenses, permits and any other permissions necessary in connection with your use of the Service.
(b) Prohibited Uses of the Service. As a condition of your use of the Service, you hereby represent and warrant that you will not use the Service for any purpose that is unlawful or prohibited by these Terms, including, without limitation, the following prohibitions in this Section: (i) You agree not to use the Service if you do not meet the eligibility requirements described in Section 1 above; (ii) You agree not to defame, harass, abuse, threaten, stalk or defraud users of the Service, or collect, or attempt to collect, personal information about users or third parties without their consent; (iii) You agree not to intentionally interfere with or damage, impair or disable the operation of the Service or any user’s enjoyment of it by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on the Service with the intended result of denying service to other Users; (iv) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security- related features of the Service, features that prevent or restrict the use or copying of any part of the Service, or features that enforce limitations on the use of the Service; (v) You agree not to attempt to gain unauthorized access to the Service or any part of it, other accounts, computer systems or networks connected to the Service or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted through the Service; (vi) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree neither to modify the Service in any manner or form (other than contributing User Content as enabled by the Service’s functionality and in accordance with these Terms), nor to use modified versions of the Service, including (without limitation) for the purpose of obtaining unauthorized access to the Service; (vii) You agree that you will not use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service (provided that the foregoing restriction will not apply to search engine robots accessing the Service for indexing purposes); (viii) You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures; and (ix) You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
10. Account Information and Password. In order to access the Service, you will have to create an account using your current valid e-mail address. Accounts registered by “bots” or other automated methods are not permitted, and will be terminated upon discovery. You acknowledge, consent, and agree that Inktank may access, preserve and disclose your account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to any claim that User Content violates any laws or regulations or the rights of third parties; (d) provide certain customized features of the Service to you, if any; (e) respond if you contact Inktank for any reason; or (f) protect the rights, property, or personal safety of Inktank, its other Users, and the public. When you register for the Service you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), you shall immediately notify Inktank. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, INKTANK OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
11. Contributed Content. Other Users and other third parties may provide software applications, data, media, text, audio and video recordings, photos, graphics or other information or content in connection with the Service (“Contributed Content”). Inktank has no control over such Contributed Content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of such Contributed Content. The reference to or availability of any Contributed Content in connection with the Service does not imply Inktank’s affiliation, endorsement, or adoption of any Contributed Content. ACCESS AND USE OF CONTRIBUTED CONTENT IS SOLELY AT YOUR OWN RISK.
12. Service Availability. Inktank may make changes to or discontinue any of the products or services available within the Service at any time, and without notice.
13. Termination. You may terminate your access to the Service for any reason by providing us notice and closing your account. We may terminate your access to the Service for any reason by providing you thirty (30) days prior written notice, for curable breach of these Terms upon fifteen (15) days prior written notice to you unless such curable breach is cured by you during such fifteen (15) day period. We may also terminate your access to the Service immediately upon notice to you (a) if we elect to discontinue offering the Service for business reasons, or (b) if we determine such termination is necessary or desirable to maintain our compliance with applicable laws, regulations and avoid violation of third party rights.
14. INDEMNIFICATION; HOLD HARMLESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS INKTANK, AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE SERVICE; (II) YOUR USER CONTENT, INCLUDING INKTANK’S STORAGE, POSSESSION, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY INKTANK. INKTANK RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF INKTANK. INKTANK WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
15. DISCLAIMERS; NO WARRANTIES.
(a) ACKNOWLEDGMENT. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 15, AND SECTIONS 16 AND 17 BELOW, THE TERM INKTANK INCLUDES INKTANK’S PARENT, SUBSIDIARY, AFFILIATED AND OTHER RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP) AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS AND SUBCONTRACTORS.
(b) NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, INKTANK DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM INKTANK OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(c) “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, USER CONTENT AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
(d) SERVICE OPERATION. INKTANK DOES NOT WARRANT THAT THE SERVICE, ACCESS TO USER CONTENT OR TO ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(e) ACCURACY. INKTANK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(f) HARM TO YOUR COMPUTER. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.
16. LIMITATION OF LIABILITY AND DAMAGES.
(a) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL INKTANK OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE, THE SERVICE OR USER CONTENT, OR ANY OTHER INTERACTIONS WITH INKTANK, EVEN IF INKTANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) LIMITATION OF DAMAGES. IN NO EVENT SHALL INKTANK’S OR ITS THIRD PARTY PARTNERS’, LICENSORS’ OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED FIVE HUNDRED DOLLARS (USD $500).
(c) THIRD PARTY CONTENT AND SERVICES. THESE TERMS AND THE POLICIES DO NOT GOVERN YOUR USE OF ANY CONTENT (INCLUDING WITHOUT LIMITATION ANY CONTRIBUTED CONTENT) OR SERVICE (INCLUDING WITHOUT LIMITATION GITHUB AND IRC) THAT YOU MAY ACCESS OR USE IN CONJUNCTION WITH YOUR USE OF THE SERVICE, BUT WHICH ARE NOT PART OF THE SERVICE, BUT ARE RATHER PROVIDED BY THIRD PARTIES. YOU SHOULD REVIEW THE APPLICABLE THIRD PARTY TERMS AND POLICIES OF ANY PROVIDERS OF SUCH CONTENT OR SERVICES, INCLUDING CONTRIBUTED CONTENT.
17. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN.
(a) LIMITATIONS BY APPLICABLE LAW. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
(b) BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT INKTANK HAS OFFERED THE SERVICE AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND INKTANK, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND INKTANK. YOU ACKNOWLEDGE AND AGREE THAT INKTANK WOULD NOT BE ABLE TO PROVIDE THE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
18. Digital Millennium Copyright Act Compliance.
(a) Infringement Claims. If you are a copyright owner or an agent thereof, and believe that any User Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail).
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Service and that is to be removed or access to which is to be disabled, including the link or URL for all such material on the Service;
(iv) Information reasonably sufficient to permit Inktank to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) 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
(vi) 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.
Inktank’s designated Copyright Agent to receive notifications of claimed infringement is:
Inktank Storage, Inc., Attn: Legal services, 707 Wilshire Boulevard #5050, Los Angeles, CA 90017
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFIRNGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.
(b) Notice and Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below.
We may, at our discretion, deny access to the Service by, or disable and/or terminate the accounts of, Users who may be infringers.
(c) Copyright Counter-Notices. If content you posted on the Service was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:
To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
(d) Elements of Counter-Notification. To expedite our ability to process your counter- notification, please use the following format (including section numbers):
1. Identify the specific information sufficient to allow us to identify material that Inktank has removed or to which Inktank has disabled access. 2. Provide your full name, address, telephone number, email address and, if you are a registered User, the User name of your Inktank account. 3. Provide a statement that you consent to the jurisdiction of the Central District of California, and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above, or an agent of such person. 4. Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.” 5. Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
Inktank Storage, Inc., Attn: Legal services, 707 Wilshire Boulevard #5050, Los Angeles, CA 90017
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your identifying information set forth in the counter-notification. By submitting a counter-notification, you consent to having such identifying information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity on the Service. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
(e) Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on the Service is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of California. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.”
(f) Disclaimer: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
(a) Notice. Inktank may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the website for the Service. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after an email is sent, unless Inktank is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide Inktank with notices only by mail to the address indicated in subsection (l) below.
(b) Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
(c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or the Service shall be filed only in the state or federal courts in and for the County and State of Los Angeles, California and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action.
(d) CLAIMS. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(e) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
(f) Assignment. The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Inktank without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
(g) No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Inktank as a result of these Terms or use of the Service. You further acknowledge that by providing User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Inktank other than pursuant to these Terms. There are no intended or unintended third party beneficiaries hereunder.
(h) Force Majeure. Inktank shall not be liable to you for any non-performance with respect to the delivery of the Service or otherwise that is caused by floods, strikes or other labor disturbances, riots, fires, accidents, wars, embargoes, delays of carriers, inability to obtain materials, failure of power or of natural sources of supply, acts, injunctions, or restraints of government (whether or not now threatened), or any cause preventing such performance whether similar or dissimilar to the foregoing beyond the reasonable control of Inktank.
(i) U.S. Government Rights. If the Service is provided to the U.S. Government, it is being provided as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and/or “technical data” with the same rights and restrictions generally applicable to the Service. If you are using the Service on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Service. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” as used herein have the respective meanings as defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
(j) Entire Agreement. These terms, together with the Policies, constitute the entire agreement between you and Inktank relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any separate written agreements relating to the Service that you may have entered into with Inktank. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms made by Inktank as set forth in Section 3 above.
(k) Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Inktank to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
(l) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.