Terms of Use
1. SCOPE
THELKIN AG created and maintains the THELKIN.com website and other websites added to THELKIN.com from time to time to provide a repository where you ( You or Your ) and other THELKIN equipment user, test expert, and other interested parties (each, a User and collectively, Users ) may obtain and share information around THELKIN's products and services, and other topics found on THELKIN.com. If You are accessing and/or using THELKIN.com on behalf of Your employer or as a consultant or agent of a third party (collectively Your Company ), You represent and warrant that You have the authority to act on behalf of and bind Your Company to the terms of this Terms of Use Agreement ( TOU ) and everywhere in this TOU that refers to You or Your, shall also include Your Company.
2. ACCEPTANCE OF TERMS
Unless otherwise agreed to in a separate signed agreement between Your Company and THELKIN, Your access and use of the THELKIN.com, Content (defined in Section 7 below), or any forums, wikis, blogs, or services provided on THELKIN.com (any Services ), are subject to this TOU. Additionally, Your use of the THELKIN.com, Content, and the Services may also be subject to disclaimers, legal notices, click-through agreements, or other legal agreements (any, Additional Legal Terms ), which may be posted on the THELKIN.com where applicable. This TOU and the applicable Additional Legal Terms (together Controlling Terms ) form a legally binding agreement between You and THELKIN regarding Your access and use of the THELKIN.com, Content, and the Services. Whenever there is a conflict between the terms in this TOU and the Additional Legal Terms, the terms in the Additional Legal Terms shall control. By accessing or using THELKIN.com, You accept and agree to abide by the terms of this TOU. If You do not agree to the terms of this TOU, You must not attempt to access or use THELKIN.com. Your access and use of any THELKIN software or related documentation provided on THELKIN.com (together THELKIN Software ) shall be subject to a separate software license agreement made available to You at the time You access or download the THELKIN Software.
3. CHANGES AND NOTICES
THELKIN reserves the right to make changes to this TOU and to modify, change or discontinue any part or all of the THELKIN.com and/or the Services at any time. THELKIN will notify You of any changes to this TOU when You visit the THELKIN.com, or via email, or by providing You with information on such update and updating the TOU which can be viewed via the Terms of Use link. THELKIN may make changes to its products, service offerings, the THELKIN.com, and/or the Services and THELKIN Software at any time without notice. The most current version of this TOU can be accessed by clicking terms of use which is included on the bottom of each web page comprising the THELKIN.com.
4. CONFIDENTIAL INFORMATION
A. Except for Web sites within THELKIN.com which are clearly identified as non-public (each a Non-Public), the THELKIN.com is intended to be a public forum subject to the terms of this Agreement and You agree not to provide THELKIN or other Users with any confidential or proprietary information that You or the owner of the information do not intend to become public information. Any Content that You send or upload to THELKIN.com will be deemed NOT to be confidential or proprietary, and You expressly agree that You waive any trade secret or other confidentiality rights with respect to such uploaded Content.
B. You agree not to reproduce any Confidential Information to which you are provided access through the THELKIN.com in any form except as authorized at the time of disclosure. Any reproduction of THELKIN Confidential Information shall remain the property of THELKIN and shall contain any and all confidential or proprietary notices or legends which appear on the original. You agree to (a) take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) to use Confidential Information solely as authorized at the time of disclosure and (d) not to disclose any Confidential Information to any party without the prior written consent of THELKIN. You do not acquire any rights in Confidential Information except the limited rights as described above. In no event shall You use Confidential Information to create, enhance, modify, rent, lease, loan, sell, distribute or create derivative works based on the Software or Services, or compete with THELKIN Software or Services in whole or in part. As used herein, Confidential Information shall mean all trade secrets and other information or Services which THELKIN or third parties protect against unrestricted disclosure to others which is either labeled Confidential, accessed through a restricted area of THELKIN.com, pursuant to software downloads, or reasonably identifiable as confidential based on the type of information and the manner of its disclosure, and reasonable steps means those steps You and/or Your Company take to protect Your own similar Confidential Information, which shall not be less than a reasonable standard of care. All uploads by you into THELKIN.com, whether into a public forum or non-public forum, shall be at your own risk and THELKIN takes now responsibility for the use or misuse of any such uploaded information by any other user of THELKIN.com.
5. YOUR INFORMATION, PRIVACY, AND DATA PROTECTION
You understand and agree that THELKIN collects, uses, stores and otherwise processes Your personal information and utilization data and may share such data with third party service providers for the purposes of improving or providing the Services subject to THELKIN's Privacy Statement. Data to be processed includes Your name, email address, and other information which may include but is not limited to Your telephone number, and postal address. In a limited number of cases when accessing specific websites or responding to sales offers (each, a "Transaction"), THELKIN may temporarily collect and utilize Your credit card number and expiration date for the purposes of processing a Transaction. Collection and processing of credit card numbers and expiration dates will be subject to a separate agreement. All personal data will be treated confidential and in compliance with the Swiss Data Protection Act (Datenschutzgesetz des Bundes) and other applicable legislation.
You agree that THELKIN may access, preserve and disclose Your personal information and/or Content if required to do so by law or to: (i) comply with a legal process; (ii) respond to claims that any Content violates the rights of third parties or (iv) protect the rights, property or personal safety of THELKIN, Users, and the public.
You agree to comply, with the terms of the above THELKIN privacy statement, and the privacy terms found by clicking on privacy at the bottom of the home web page comprising the THELKIN.com.
6. COPYRIGHT POLICY
Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders rights. You agree that You will not use THELKIN.com to infringe the Intellectual Property Rights of THELKIN or others in any way. You must not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notice of ownership from any originals or copies of THELKIN Software, third party software, or any Content accessed on the THELKIN.com. As used herein, Intellectual Property Rights means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade secret or confidentiality rights, and any other intangible property rights including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
You agree to comply with the terms of the above THELKIN Copyright Policy and those terms found by clicking on Copyright/Trademark at the bottom of the home web page comprising the THELKIN.com.
7. RESPONSIBILITY FOR LINKS AND CONTENT
THELKIN.com may contain links to external Web sites and information provided on such external websites by THELKIN partners and third-party service providers. THELKIN shall not be responsible for the contents of any linked Web site, or any changes or updates to such sites. You further agree that THELKIN shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on any content, goods or services available on or through any such linked Web site. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog on THELKIN.com (any Content ), whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the Content.
8. INTELLECTUAL PROPERTY RIGHTS; LICENSE GRANT
Subject to any licenses You grant to THELKIN pursuant to this Agreement, You shall retain ownership of all Intellectual Property Rights in and to the Content provided by You on the THELKIN.com to the extent You are the owner or holder of the Intellectual Property Rights. Nothing in this Agreement shall prohibit You from selling or licensing Your Content to any other party under a separate agreement.
By transmitting or uploading Content to THELKIN.com, You grant THELKIN a perpetual, unlimited, irrevocable, royalty-free, worldwide license to: use, reproduce, adapt, display, perform, modify, transmit, translate, distribute, and create derivative works of the Content; to make, have made, offer to sell, sell, lease, or otherwise distribute any Content or product; and to practice any method, embodying such Content (including the right to sublicense any of the foregoing). You further represent and warrant to THELKIN that You have the right, title, and/or authority to grant such license to THELKIN. THELKIN may elect not to post or publish the Content that You send or upload. If THELKIN elects to post or publish the Content, THELKIN may in its sole discretion elect to withdraw the posted or published information for any reason and without notice.
All Intellectual Proprietary Rights to any THELKIN Software and the Services shall belong to THELKIN. Nothing in this TOU shall be deemed to give You the right to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative words from, transfer, or sell any THELKIN Software for any reason unless otherwise permitted by law. You hereby agree to assign and do assign to THELKIN any modifications or derivative works of any THELKIN Software made by You in contravention of this limitation.
9. PERMISSIBLE USE OF THELKIN.COM
You are permitted to access THELKIN.com and Use the Services Content and THELKIN Software solely for Your personal, informational, noncommercial purposes.
10. TERMINATION AND ACCOUNTABILITY
In the event You are in material breach of the Controlling Terms, THELKIN may, at its sole discretion refuse You any current or future use of THELKIN.com. THELKIN may remove any Content posted on THELKIN.com at THELKIN's sole discretion. THELKIN shall not be liable to You or any third party for any termination or change to THELKIN.com and/or the Services. If You send or upload Content that is confidential or proprietary of a third party without that third party's permission, or, if You transmit or upload Content that is intended to infect, corrupt or otherwise disrupt the operation of THELKIN.com or any other Users computer system, THELKIN may report You to the relevant authorities to ensure You are held accountable to the fullest extent of applicable laws.
You agree not to use THELKIN.com to:
publish, upload, post, email, transmit or otherwise make available any Content that (a) You do not have the right to make available (b) is unlawful, harmful, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable; (c) infringes any Intellectual Property Rights of any party, (d) includes any unsolicited or unauthorized advertising, promotional materials, surveys, junk mail, spamming, chain letters, or any other form of solicitation, commercial or otherwise, or (e) contains a software virus, Trojan horse, worm, time bomb, cancelbot, corrupted file, or any other computer file or software designed to interrupt, destroy, damage or limit the functionality of any computer hardware, software or other property;
defame, harass, abuse, stalk, threaten or violate the legal rights of others such as rights of privacy and publicity;
impersonate any person or entity, including, but not limited to, an THELKIN official, THELKIN employee, or any other third party, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
forge email headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
download any file or Content posted by another user that You know, or reasonably should know, should not be legally reproduced, displayed, performed and/or distributed in such manner;
interfere with or disrupt the Services, servers, or networks which support the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
violate any applicable local, state, national or international law and any regulations;
harvest, collect, or store personal information or data of other Users.
11. SPECIFIC TERMS TO THELKIN SOFTWARE AVAILABLE ON THELKIN.COM
THELKIN Software made available to download from THELKIN.com is the copyrighted work of THELKIN. Use of the THELKIN Software is governed by a software license agreement (License Agreement) which accompanies or is included in such THELKIN Software. You may not use or install any THELKIN Software which is accompanied by or includes a License Agreement until You first agree to the terms of the License Agreement. Any copying, reproduction, or redistribution of the THELKIN Software not in accordance with the License Agreement is expressly prohibited. You must not modify, decompile, or reverse engineer any THELKIN Software, except to the extent expressly permitted by applicable law. You must not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notice of ownership from any originals or copies of THELKIN Software or from any Content accessed on THELKIN.com.
12. INDEMNITY
You agree to indemnify and hold THELKIN, its affiliates, subsidiaries, officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of Your Content or Your usage of the THELKIN.com or Services, Your breach of this TOU or THELKIN's Copyright or Privacy Statements, or Your alleged violation of any other rights of a third party.
13. EXCLUSION OF SOFTWARE WARRANTIES
THELKIN.com, Content, and Services are being provided to You AS IS. THELKIN does not guarantee or warrant any features or qualities of the THELKIN.com, Content, or Services or give any undertaking with regard to any other quality. Statements and explanations to THELKIN.com, Content, Software or Services in promotional material or on THELKIN.com and in the documentation are made for explanatory purposes only; they are not meant to constitute any guarantee or warranty of certain features. No warranty or undertaking shall be implied by a User from any published THELKIN description of or advertisement except to the extent THELKIN has expressly confirmed such warranty or undertaking in writing. Warranties are validly given only with the express written confirmation of THELKINs management.
THELKIN does not represent or endorse the accuracy or reliability of any (i) links to web-pages of third parties contained on the THELKIN.com, or the content obtainable on such web-pages or (ii) any information provided by third parties on THELKIN.com. THELKIN only reviews whether the content of such web-page at the time it was linked, and information provided by third parties on the THELKIN.com evidently contains illegal contents or infringements against intellectual property rights. THELKIN will not permanently control and/or review the linked web-pages and the information provided by third parties but upon sufficiently proven indication will remove the respective link and/or information. THELKIN shall not be liable for damages caused by the use of the content and/or information, unless such damages have been caused by THELKINs willful misconduct, gross negligence or THELKINs failure to fulfill its duty to review as stipulated herein.
14. LIMITATION OF LIABILITY
To the extent allowable by applicable law, THELKIN and its affiliates, subsidiaries, officers, employees, agents, partners, and licensors are not liable to any user for any direct, indirect, incidental, special, punitive, consequential, or exemplary damages, including, but not limited to, damages for loss of profits, revenue, goodwill, use, data, or other intangible losses (even if THELKIN has been advised of the possibility of such damages), however caused, whether in contract, tort, or otherwise, arising out of or resulting from: (i) the use or the inability to use the THELKIN.com, THELKIN software, or services; (ii) the cost of procurement of substitute goods and services arising out of Your use or inability to use any THELKIN software, content, or services purchased or obtained during transactions conducted on the THELKIN.com; (iii) unauthorized access to or alteration of Your transmissions or data; (iv) statements, messages, or conduct of any third party on the THELKIN.com; or (v) any other matters relating to the THELKIN.com or services. Notwithstanding anything to the contrary herein, these limitations shall not apply in case of intent or gross negligence by THELKIN and in case of THELKIN's statutory liability for personal injury and defective products.
15. APPLICABLE LAW
15. A. This site is created and controlled by THELKIN in Switzerland . Except as set forth in Section 15 B., the laws of Switzerland will govern this TOU without giving effect to any principles of conflicts of laws. You also agree to comply with all laws from the country in which You reside that are applicable to the transmission of data on the Internet, including, but, not limited to laws governing the use of encryption and laws governing the transmission of data across international boundaries, into prohibited countries, and containing personally identifiable information.
15. B. In the event You access or Use THELKIN.com from the United States, matters related to access and Use of THELKIN.com and these TOU shall be governed by U.S. federal law or the laws of the State of Illinois. Any legal action or proceeding relating to your access to, or use of, THELKIN.com or Content shall be instituted in a state or federal court in Chicago, Illinois. You and THELKIN agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
16. SURVIVAL
Your confidentiality obligations hereunder shall survive termination of Your access rights. Upon any termination of Your account, or THELKINs written request, You must cease use of Confidential Information, Discoveries, and/or Services and return or destroy all Confidential Information in Your possession or control.
17. WAIVER AND SEVERABILITY
The failure of THELKIN to exercise or enforce any right or provision of this TOU shall not constitute a waiver of such right or provision. To the extent that any provision in this TOU shall be found to be unenforceable, such provision shall be modified in such a manner so as to make this TOU as modified, legal and enforceable under applicable laws and the balance of the provisions of this TOU shall not be affected thereby.