FIREWHAT TERMS OF SERVICE
PLEASE READ CAREFULLY.
THESE TERMS OF SERVICE (THE "AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN YOU ("YOU" OR, IN THE POSSESSIVE, "YOUR") AND FIREWHAT INC. ("FIREWHAT", "WE" OR, IN THE POSSESSIVE, "OUR"). BY CHECKING THE APPROPRIATE BOX INDICATING THAT YOU AGREE DURING REGISTRATION OR OTHERWISE ACCESSING THE FIREWHAT WEBSITE, SERVICES OR MATERIALS (COLLECTIVELY THE "SERVICE" OR “FIREWHAT.COM”), YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU CONSENT TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ALL OF THE FOLLOWING TERMS AND CONDITIONS, PLEASE DO NOT CONTINUE THE REGISTRATION PROCESS OR USE THE SERVICE.
1. Description and Eligibility
Welcome to FireWhat.com, a platform for the indexing, collection, and discussion of firefighting information for professional and volunteer firefighters and emergency medical service personnel as well as the general public. FireWhat.com contains information that may be intended for trained firefighters and emergency medical service personnel, and which depicts activities or techniques that may be dangerous when attempted by untrained personnel. While FireWhat.com believes that information concerning firefighting is and should be of interest to the general public, you should not attempt any of the activities or techniques unless you have completed appropriate training. Use common sense and good judgment at all times. Unless specifically labeled otherwise, neither FireWhat.com as a whole nor any content on FireWhat.com is endorsed or certified by any trade association, union or any federal or state regulatory body.
You and other users of the Service (“Users”) can access the Materials (as defined below) through the FireWhat.com website and various mobile devices on which we provide viewing applications. FireWhat may, in its discretion, impose time limits, platform restrictions or geographic or other restrictions on the availability of certain Materials. You may also have access to URLs, images, videos, photographs, messages, recommendations, reviews and other content that you and other Users supply (collectively “User Supplied Content”).
Please note that FireWhat does not provide any telecommunications services, nor does FireWhat provide any computer equipment or mobile devices for Users. You are entirely responsible for securing and paying for any such telecommunications services and equipment, and for ensuring that such services and equipment meet the minimum requirements for the use of the Services.
FireWhat does not make the Service available to anyone under the age of 13. Any child between the ages of thirteen (13) years and seventeen (17) years may not sign up for themselves, and must have an adult parent or guardian sign up on their behalf. You represent that you are a 'natural person' older than the greater of (a) the age of eighteen (18) years, or (b) the age of majority in the country where you are a citizen. You agree to this Agreement on behalf of yourself and, at your discretion, on behalf of a minor child over the age of 13 for whom you are a parent or guardian and who you have authorized to use the account you create on the Service. Parents and guardians of Users under the age of 18 will be responsible for their minor User’s use of the Service and any violation of this Agreement. Except as FireWhat may otherwise expressly permit in a separate agreement with you, you may use the Service solely for your personal, non-commercial use.
You may establish one (1) User account (the "Account") for yourself and one for each minor age 13 or over for whom you act as parent or guardian. If you are a parent or guardian, you may permit one (1) minor child over the age of 13 to use the Account when not in use by you. You agree that you will not allow any others to use your User name, password (to the extent a password is required to access the Service) and/or Account. You are liable for all uses of the Account, and agree to indemnify and hold FireWhat, its partners, parent, subsidiaries, affiliates, agents, distributors, contractors and licensors (collectively the “FireWhat Affiliates”), harmless for any improper, unauthorized or illegal uses of your User name, password and/or your Account. This includes illegal, unauthorized or improper use by anyone to whom you have given permission to use your User name, password and/or Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that as between you and FireWhat, all rights in and to the Account (including but not limited to any Materials and the unique User name, but not your email address or other contact information) are and shall forever be owned by FireWhat.
4. FireWhat Materials
The Service makes content of various types available to Users, including but not limited to video, audio, music, photographs, artworks, and text (collectively, the “FireWhat Content”). The Service may also require that your browser run certain software (in the form of browser plugins or controls) that FireWhat will provide. That software, and all new versions, updates, upgrades, bug fixes, modifications and derivative works that FireWhat may make available from time to time are referred to collectively as the “Browser Software.” All Browser Software, FireWhat Content, designs, text, images, photographs, illustrations, audio clips, video clips, artwork, graphic materials, other copyrightable elements, and the selection and arrangements thereof, and all trademarks, service marks, trade dress, trade names, logos and designs and all intellectual property rights therein, provided by FireWhat via the Service (collectively the "Materials") are the property of FireWhat and/or its business partners, affiliates, assigns, licensors or other respective owners and are protected by intellectual property laws, including without limitation, U.S. and international patent, copyright and trademark laws. FireWhat may include in some Materials or in conjunction with your User Supplied Content third party advertisements that appear or are played when those Materials or User Supplied Content are viewed. You hereby consent to the display and playback of these advertisements in conjunction with your User Supplied Content. To the extent you elect to use or access either the Materials or other users’ User Supplied Content, you also consent to the display of advertisements in those Materials and that User Supplied Content.
5. License from FireWhat
Subject to all of the terms and conditions of this Agreement, FireWhat hereby grants you a personal, limited, non-exclusive, non-transferable, revocable right to (a) view or play back Materials on your compatible computer or device, and (b) for noncommercial personal use only, to use, reproduce and display URLs, applets, graphic badges or other means provided by FireWhat to link to FireWhat Content and display FireWhat Content on and in third party web pages, email messages, SMS messages, and instant messages. FireWhat reserves the right to revoke this limited license at any time, either in part, in its entirety or with respect to any FireWhat Content or any Materials, for any reason, at the sole discretion of FireWhat (where such reason may include, without limitation, FireWhat’s belief that any FireWhat Content or other Materials may be subject to a claim of intellectual property infringement or otherwise the subject of a dispute).
Subject to all of the terms and conditions of this Agreement, FireWhat hereby grants you a personal, limited, non-exclusive, non-transferable and revocable license to use for noncommercial personal use the Browser Software and other Materials provided in the form and format that FireWhat provides such Materials. To the extent that FireWhat provides Materials for download or reproduction (the "Downloaded Materials"), you must include or maintain all copyright, trademark and other notices contained or associated with such Downloaded Materials. You acknowledge and agree that you may not sublicense, assign or otherwise transfer this license or the Downloaded Materials and that no title to the Downloaded Materials has been or will be transferred to you from FireWhat or anyone else. FireWhat reserves the right to revoke this limited license at any time in part, in its entirety or with respect to any Downloaded Materials, for any reason, at the sole discretion of FireWhat (where such reason may include, without limitation, FireWhat’s belief that any Downloaded Materials may be subject to a claim of intellectual property infringement or otherwise the subject of a dispute).
All rights not expressly granted to you are reserved. For the avoidance of doubt, your use of the Service and the Materials (including, but not limited to, the FireWhat Content) is under license and will terminate if this Agreement terminates, regardless of whether the relevant Service or Materials is free or you have paid for it; you will not obtain any ownership interest in any Materials (including, but not limited to, the FireWhat Content) through this Agreement or otherwise.
6. User Supplied Content
As a condition to your use of the Service and by submitting your User Supplied Content to the Service, you hereby grant FireWhat a non-exclusive, royalty-free, universe-wide, perpetual, irrevocable, transferable, assignable, and sublicenseable (to any number of tiers) license to reproduce, publicly display, publicly perform, distribute, transmit, and otherwise use the User Supplied Content in all contexts, formats and media. You also hereby forever waive and agree never to assert against FireWhat, its successors, licensees, or assignees, any and all moral rights you may have in any User Supplied Content you contribute.
If you desire FireWhat to remove your User Supplied Content from public access on the Service, please request that it be hidden, as specified in the Service or by sending us an email at support [at] firewhat [dot] com. However, you acknowledge and agree that: (a) any rights that FireWhat has assigned or licenses FireWhat has granted with respect to your User Supplied Content will survive according to their terms; and (b) we cannot guarantee that your User Supplied Content will be completely removed from the Service, nor from all User devices, nor that other Users will not misuse any content that you supply. In particular, you should be aware that you will not be able to delete any contributions you may make to any forums, chat rooms, or other venues sponsored by FireWhat. FireWhat is not responsible for any misuse of your User Supplied Content by any other person, including any User.
Certain portions of the Service may allow Users to upload and share User Supplied Content with each other and with other third parties. To the extent FireWhat provides the ability for you to set usage preferences (e.g. private use, public use, etc.) for the User Supplied Content that you place on the Service, you will be responsible for doing so, and FireWhat will use its commercially reasonable efforts to accommodate such usage preferences. You agree to abide by (and not circumvent) all usage preferences set by FireWhat, Users or other third parties for all third-party User Supplied Content and any Materials. FireWhat does not guarantee that it will provide the ability for you to set usage preferences, that any such usage preferences will always be applied, or that your User Supplied Content will be kept secure. FireWhat takes no responsibility and assumes no liability for any User Supplied Content that you or any other Users or third parties post or send over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Supplied Content that you upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility.
When posting, uploading or otherwise communicating any User Supplied Content through the Service, you hereby represent and warrant, now and in the future, that: (i) you own or otherwise control all necessary rights to so provide the User Supplied Content, and your grant of the above license in the User Supplied Content, and its use in connection with the Service, does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights, rights of publicity and privacy; (ii) your User Supplied Content is not illegal, abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate or harmful to any person or entity; (iii) your User Supplied Content contains no viruses, worms, corrupt files, Trojan horses, or other forms of malicious code, or any other content which may compromise the Service; (iv) your User Supplied Content does not advocate or promote illegal activity; (v) your User Supplied Content does not link to or promote any prohibited content or activity; and (vi) your User Supplied Content will be appropriate for the themes and subject matter of FireWhat. You hereby agree to indemnify and hold harmless FireWhat and FireWhat Affiliates from any and all claims resulting from any User Supplied Content that you supply. FireWhat neither endorses nor is responsible for the accuracy or reliability of any content, opinion, advice, information, or statement made on or in connection with the Service by anyone other than authorized FireWhat employees acting in their official capacities.
In addition to the above, you acknowledge and agree that FireWhat may access, review, store, reproduce and/or disclose, as applicable, any User Supplied Content if required to do so, or if FireWhat has a good faith belief that it is required, by law, court orders or other legal processes, to enforce this Agreement, to respond to any claims that such User Supplied Content (or your use of the same) violates any third party's rights, or to protect the rights, property or personal safety of FireWhat, its business partners, affiliates, licensors and/or licensees, any other User, or the general public.
7. Usage Restrictions
You agree not to directly or indirectly, by any method, incorporate into any application or equipment, use, copy, download, capture, reproduce, store, modify, create derivative works of any kind (including translations) from or based upon, display, perform, publish, distribute, disseminate, transmit, broadcast or circulate any Materials (including, but not limited to the FireWhat Content), except as expressly authorized by FireWhat in connection with the Service. You further agree that you will not disassemble, decompile or reverse engineer the Materials (except to the extent that this restriction is expressly prohibited by law, and then only upon providing FireWhat with prior written notice and opportunity to respond). Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable federal and state laws.
Except as specifically permitted and enabled within the Service, you may not transfer your Account to any other person. You may not display, link or stream FireWhat Content or other Materials on a third party's web page or service except as permitted by the proprietor of such web page or other venue. You may not display, link or stream FireWhat Content or other Materials in a manner that is, in the sole discretion of FireWhat, unlawful, misleading, defamatory, infringing, libelous, disparaging, obscene, an endorsement of any unrelated product or service, an unauthorized parody or otherwise objectionable. You may not display, link, or stream any FireWhat Content or Materials on sites that feature defamatory, pornographic, or inflammatory content, or any other content that FireWhat finds objectionable or unlawful. FireWhat Content may not be the most prominent element on a web page and shall not be linked or streamed in any manner that implies any relationship, affiliation, sponsorship, or other endorsement by FireWhat of that web page or any other content on that web page. You may not display, link or stream any FireWhat Content or other Materials in a manner that in the sole discretion of FireWhat can be interpreted as suggesting any editorial content other than the FireWhat Content has been authored by, or represents the views or opinions of, FireWhat, its licensors or its personnel. You will not display, link, or stream FireWhat Content on a third party web page or service without proper attribution to FireWhat or its licensors, nor without a link back to the original location of the relevant FireWhat Content on FireWhat.com. Through the use of the Service you may not impair or violate the rights of FireWhat or any other party with respect to trademarks, logos, or other intellectual property or rights.
8. Code of Conduct
You may not: (i) post any User Supplied Content that is illegal, abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate or harmful to any person (including any minor) or entity; (ii) sell, rent, lease, or otherwise assign any rights to any Materials or Service to any third party; (iii) remove any proprietary notices or labels on the Materials or Service; (iv) use the Materials or Service in conjunction with any technology, service or other means to remove, disable, bypass, or circumvent any mechanisms intended employed to control access to, or the rights in, any FireWhat Materials or User Supplied Content protected by the copyright laws of any jurisdiction; (v) use the Materials or Service for any business purpose, illegal purpose or to harm minors in any way; (vi) use the Materials or Service to invade the privacy of, or obtain personal information about, any User, or to obtain a list of Users, or to access or use any User’s User Supplied Content in a manner not specifically authorized by such User; (vii) except as expressly permitted by FireWhat, copy, modify, erase or damage any Materials or information contained on any FireWhat or third party servers; (viii) use the Materials or Service to violate any law or legal right of any third party, including any publicity or privacy right, copyright, other intellectual property right, or any contractual, fiduciary or confidentiality obligation or duty, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful or otherwise objectionable; (ix) use the Materials or Service to post or transmit any unsolicited advertising, campaigning or promotional materials or to send any Materials from an anonymous or false address; (x) access or use any password protected, secure or non-public areas of the Service except as specifically authorized in writing by FireWhat (unauthorized individuals attempting to access these areas of the Service may be subject to prosecution); (xi) distribute any software viruses or other computer code designed to interfere with the functionality of the Service or any computer systems, software or hardware; (xii) use any data mining, robots, or similar data gathering, spoofing, or extraction tools in connection with the Materials or Service except for those “spiders” used according to our “robots.txt” permissions by publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices — but not caches or archives — of the Materials and Service and specifically excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content; (xiii) mislead other Users or third parties as to your identity or the origin of a message or content; or (xiv) frame the Service or Materials except within a minimal iframe across the top of the browser window which does not bear advertising, does not cover any of the Service or Materials and which the user may remove by clicking a link or button within the iframe.
FireWhat may, in its sole discretion, suspend or terminate your access to the Service and delete your Account if you violate any part of the Code of Conduct.
9. Objectionable or Explicit Content
FireWhat has the right, but not the obligation, to monitor, modify and/or remove any Materials and/or User Supplied Content in the Service. FireWhat may monitor, modify and remove any Materials and/or User Supplied Content in its sole discretion. FireWhat is not responsible to you for any content or materials constituting all or part of any Materials, any User Supplied Content, or any other aspect of the Service that you might find objectionable. By viewing the Service, you may be exposed to content that you consider offensive. You take sole responsibility for such exposure.
11. Active Participation; Storage and Bandwidth Limits
If you do not have a currently active subscription to the Paid Services, a condition of your access to the Service is your "Active Participation" in the Service. Active Participation is defined as accessing the Service, including displaying Materials on your personal computer or mobile device, or sending User Supplied Content through the Service, at least once every 180 days. If you do not maintain Active Participation, FireWhat may in its discretion, with or without providing you with notice, terminate your Account (or any part thereof) and/or your use of the Service, and may remove and discard any content, including any of your User Supplied Content and any related Materials within the Service. Additionally, with or without providing you with notice, we may place a maximum limit on the amount of User Supplied Content that you are allowed to upload into the Service, or the maximum bandwidth that you may utilize each day. We may change these limits in our sole discretion upon providing you with notice. If you exceed these limits, we may refuse to accept and/or remove any User Supplied Content, or we may suspend certain functions of the Service for your Account.
12. Changes to the Agreement
You agree and understand that this Agreement and the Services may be modified by FireWhat at any time.
If you have created an Account with us, we will attempt to inform you of any modifications to this Agreement or the Services that affect your obligations to us. We will attempt to inform you of such modifications either by sending you an email at the email address you provided as part of the registration process, by a message to you at the time you log into the Services, and / or by such other means as we deem reasonably likely to reach you. If you do not agree with any such modifications, your sole remedy is the termination of your Account, which you may request by sending an email to support [at] firewhat [dot] com or using the Account deletion function within the Service, if that function is available. Your continued use of the Services after receiving notice of any modifications indicates your acceptance of the modified terms of the Agreement.
If you have not registered and do not have an Account, any modifications to this Agreement, the Site or the Services will be effective as to you upon FireWhat's posting of the new terms and/or upon implementation of the new changes on the Site or to the Service. You agree to review this Agreement periodically so that you are aware of any modifications. Your continued use of the Services after any modifications indicates your acceptance of the modified terms of the Agreement.
Unless expressly stated otherwise by FireWhat, any new features, new services, enhancements or modifications to the Services implemented after your initial access to the Services shall be subject to this Agreement.
FireWhat may provide you with any notices under this Agreement by means of a posting on the Service, by e-mail, or by sending a message to you through the Service.
14. Copyright Agent
Unauthorized copying or distribution of copyrighted Materials, User Supplied Content, or any third party content is an infringement of the copyright holder's rights. At our discretion and in appropriate circumstances (which circumstances may include, by way of example, Users who repeatedly infringe others' copyrights), FireWhat may terminate the Account of Users who infringe upon the copyright, or other intellectual property rights, of others. If you are a copyright holder who believes that FireWhat's Service is hosting or linking directly to infringing copies of your work, please let us know, and if you believe that one of our Users is a repeat infringer of your work, please let us know that in addition to the information required below. Pursuant to 17 United States Code 512(c)(2), our designated agent for notice of alleged copyright infringement on the Service is:
Attn: Copyright Agent
P.O. Box 77
Dunsmuir, CA 96025, United States of America
Email: support [at] firewhat [dot] com
Pursuant to Title 17, United States Code, Section 512(c)(3), a notification of claimed infringement related to the Service must be a written communication addressed to the designated agent as set forth above, and must include substantially all of the following:
A. A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed;
B. Specific identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a list of each copyrighted work claimed to have been infringed;
C. Information related to the work(s) reasonably sufficient for FireWhat to promptly locate the work (e.g. title of work, location within the Service, etc.);
D. Information reasonably sufficient to permit FireWhat to directly contact the complaining party, such as a complete name and address, telephone number, and an email address;
E. A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law;
F. A statement requesting that FireWhat take a specific act with respect to the alleged infringement (e.g., removal, access restricted or disabled); and
G. 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.
Except as expressly set forth in this Agreement, all trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Service and Materials are the property of FireWhat and/or its affiliates and licensors. You may not copy, display or use any of these marks without prior written permission of the mark owner.
You agree to abide by U.S and other applicable export control laws and not to transfer, by electronic transmission, the Service, or otherwise, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.
17. Promotions and Advertising
FireWhat and/or its business partners may present advertisements and promotional materials on or through the Service. Your participation in any FireWhat promotional event is subject to the terms and conditions associated with that event. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party. You agree that neither FireWhat nor its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Service.
18. The Service and Links to Third Party Services
The Service does not include or refer to any other web site linked to or from the Service, or to any third party site on which the Service may appear. The Service may present links to websites or applications owned or operated by other commercial entities, charitable organizations, trade associations, government agencies and/or other types of third party websites, services or applications not owned or operated by FireWhat. FireWhat is not responsible for the availability of these outside services or their contents. You understand and agree that neither FireWhat nor FireWhat Affiliates are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site, application, goods or services available through any such site or from any such advertiser. You should direct any concerns regarding these third party site, application, goods or services to the entity controlling the same.
19. Modifications to Service and Materials
FireWhat may, without liability or obligation, in its sole discretion and at any time: (i) make modifications to, or discontinue, any Materials and/or the Service with or without providing you with notice (except as we may expressly agree to provide you with notice elsewhere in this Agreement); and/or (ii) require you to use modified Materials and/or a modified version of the Service in order to have continued access to the Service and Materials. The modifications may result in certain Materials being unavailable, or incompatible with certain devices. Other Users may similarly delete or cease offering their User Supplied Content at any time without notice.
Upon FireWhat giving you notice, you shall promptly cease the use of, and destroy, all copies of any specified Materials, or otherwise modify your usage as directed by FireWhat. You agree that neither FireWhat nor the FireWhat Affiliates shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service or Materials.
You understand and agree that any unauthorized use of the Service or the Materials would result in irreparable injury to FireWhat and/or the FireWhat Affiliates for which money damages would be inadequate, and in such event FireWhat and the FireWhat Affiliates, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that FireWhat and the FireWhat Affiliates may have under separate legal authority, including but not limited to, any claim for intellectual property infringement. You understand and agree that your cancellation of your Account is your sole right and remedy with respect to any dispute with FireWhat. You can cancel your Account by delivering notice to FireWhat at support [at] firewhat [dot] com or using the Account deletion function within the Service, if that function is available.
You agree to indemnify, and hold harmless, FireWhat, the FireWhat Affiliates, and each of their respective officers, directors, employees, agents, licensors, representatives, and third party providers from and against all claims, actions, demands, causes of action, and other proceedings, and all losses, expenses, fees, fines, damages and costs, including reasonable attorneys' fees and court costs, arising out of or relating to your breach of this Agreement or improper use of the Service or Materials. FireWhat reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with FireWhat in asserting any available defenses.
22. Suspension or Termination
FireWhat may, in its sole discretion, terminate this Agreement or suspend your Account at any time with or without notice to you in the event that you breach (or FireWhat reasonably suspects that you have breached) any provision of this Agreement. FireWhat shall have no liability or responsibility to you if FireWhat terminates this Agreement or suspends your Account under this paragraph.
You may cancel your Account at any time by contacting support [at] firewhat [dot] com or using the Account deletion function within the Service, if that function is available.
Upon termination of this Agreement for any reason, all of your rights to use the Service and materials shall immediately terminate, and you shall immediately cease using and destroy all Materials.
You understand and agree that your use of the Service and the Materials is at your own sole risk. FireWhat is not responsible or liable for any infections or contamination of your system, or delays, inaccuracies, errors, or omissions arising out of your use of the Service or Materials. The entire risk as to the quality, accuracy, adequacy, completeness, correctness and validity of any Materials rests with you. THE SERVICE AND THE MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND WITHOUT WARRANTY BY FIREWHAT AND THE FIREWHAT AFFILIATES, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, FIREWHAT AND THE FIREWHAT AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT. THERE IS NO WARRANTY THAT THE SERVICE OR THE MATERIALS WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE. FIREWHAT AND THE FIREWHAT AFFILIATES DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR THE MATERIALS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY OR OTHERWISE. YOU WILL NOT HOLD FIREWHAT AND/OR THE FIREWHAT AFFILIATES RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING THE SERVICE OR USING THE SERVICE AND/OR THE MATERIALS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO FIREWHAT AND/OR THE FIREWHAT AFFILIATES.
UNDER NO CIRCUMSTANCES SHALL FIREWHAT AND/OR THE FIREWHAT AFFILIATES BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE AND/OR THE MATERIALS.
24. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL FIREWHAT AND/OR THE FIREWHAT AFFILIATES BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE AND/OR THE MATERIALS, EVEN IF FIREWHAT AND/OR THE FIREWHAT AFFILIATES, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, FIREWHAT AND/OR THE FIREWHAT AFFILIATES, SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED TWENTY FIVE DOLLARS ($25). Notwithstanding the foregoing, in no event shall FireWhat's liability to you for any and all claims, damages, losses, and causes of action (whether in contract, tort or otherwise) exceed the amount you have paid to FireWhat for accessing the Service.
25. U.S. Government Restricted Rights
All Materials supplied by or through the Service are provided with “RESTRICTED RIGHTS.” use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR52.22724 and DFAR252.227-7013 et seq. or its successor. Use of any of such by the Government constitutes acknowledgment of FireWhat’s and FireWhat’s licensors’ proprietary rights in them. In the event that the Agreement, or any part thereof, is deemed inconsistent with the minimum rights identified in the Restricted Right provisions, the minimum rights shall prevail.
26. Claims and Arbitration
Any action hereunder by a User must be brought, if at all, within one (1) year from the accrual of the cause of action. You agree that the all disputes and claims arising out of, or relating to, this Agreement, the Service or Materials, your use of the Service or Materials (including the arbitrability of any claim or dispute and the enforceability of this paragraph), or to any other alleged act or omission by you or FireWhat, shall be determined exclusively by final and binding arbitration. Provided however, that you agree that the terms of this paragraph do not apply to any breach or alleged breach of the ownership or license rights of FireWhat or any of its licensors with respect to any Materials and/or Service, or your (or any third party’s) misuse of the Materials and/or Service, and that, in the event of any such breach of alleged breach, FireWhat and its licensors will be irreparably harmed and entitled to equitable and injunctive relief in addition to all other remedies provided by this Agreement or available at law. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") before a panel of three arbitrators and conducted in San Francisco, California. You and FireWhat also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. Except as expressly set forth above in this paragraph, you and FireWhat may litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. To the extent that you have breached or have indicated your intention to breach this Agreement in any manner which violates or may violate FireWhat 's or any of its licensor's intellectual property rights, or may cause continuing or irreparable harm to FireWhat (including, but not limited to, any breach that may impact FireWhat’s or its licensor's intellectual property rights, or a breach by reverse engineering), FireWhat may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. To the fullest extent permitted by applicable law: no arbitration under this Agreement shall be joined to an arbitration involving any other current or former licensee of FireWhat, whether through class arbitration proceedings or otherwise; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between you and FireWhat); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between you and FireWhat).
This Agreement and any other terms or documents referred to herein represent your entire agreement with FireWhat with respect to your use of the Service and Materials. As used in this Agreement the term “licensor” shall not refer to the person at that time entering into the Agreement. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. FireWhat’s failure to pursue any available claim or defense pursuant to this Agreement or otherwise will not be a waiver of such claim or defense. The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein. The laws of the State of California, excluding its conflicts-of-law rules, govern this Agreement and your use of the Service and the Materials. The United Nations Convention of Contracts for the International Sale of Goods will not govern this Agreement, and is hereby expressly excluded. Except for claims or disputes to the extent arbitrated as provided above, you further agree and expressly consent to personal jurisdiction over you in the federal and state courts located in San Francisco, California in connection with any such dispute including any claim involving FireWhat or the FireWhat Affiliates. Capitalized terms shall have the meaning set forth in this Agreement. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. However, this Agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void.
Revised April 28, 2011