Terms and Conditions of Use

Your Agreement

Your use of www.efoil.com and the software and services provided by efoil (the "efoil service")and your submission of requested information to the efoil service constitutes your agreement for yourself and for any organization you represent (collectively, "you") and efoil, Inc. (together with its successors and assigns, "efoil") to these terms and conditions and the terms and conditions of the efoil's privacy policy.

Representations

You and efoil each represent and warrant to the other that each has the legal power and authority to enter into this Agreement. efoil agrees that it will provide the efoil service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the efoil service will perform substantially in accordance with the online efoil help documentation under normal use and circumstances. You agree that you have not and will not falsely identify yourself nor provide any false information to efoil or to other customers of efoil through the efoil service.

Dues and Fees

You agree to pay dues and fees to efoil when due.  You will maintain a valid purchase order or credit card on file with efoil, together with complete and accurate billing and contact information, at all times.  efoil will maintain a current schedule of dues and fees, which will become effective no sooner than 60 days after the schedule of dues and fees is posted to the efoil web site.

efoil bills in US Dollars.

efoil may suspend your access to the efoil service if you are more than 30 days delinquent on payments, and efoil charges 1.5% per month on delinquent amounts plus costs of collection.

You may terminate your account with efoil at any time on 30 days notice.

Your Data

All data submitted by you to efoil is your property ("Customer Data).  All data intentionally shared by you and other customers of efoil is severally owned by you and such other customers. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data provided by you, and efoil is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. 

Maintenance of Your Data

In the event that you terminate your use of the efoil service (other than by reason of your breach of these terms of service), efoil will make available to you a data file of your Customer Data in a generally acceptable format specified by efoil within 30 days of your termination notice if you so request.  In addition, efoil will terminate all access by efoil customers and third parties to your Customer Data on your request, provided that access to such portions of your Customer Data that is being shared with other efoil customers will not be terminated.  efoil reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for breach, your right to access or use Customer Data immediately ceases, and efoil will then have no obligation to maintain or forward any Customer Data.  efoil will not delete data if in efoil's opinion such data is required to be maintained by law or is necessary to be maintained for accounting or 

Your Equipment

efoil does not provide Internet connectivity services. You are responsible for providing all equipment and establishing the required connections necessary to access the Internet and the efoil service. Access to the efoil service requires the use of Microsoft Explorer 5 (or higher) or Netscape Navigator 7 (or higher) or the equivalent.

Intellectual Property License

The software and services provided by efoil in connection with the operation of the efoil service is the exclusive property of efoil. efoil grants you a non-exclusive, non-transferable worldwide right to use the efoil service, solely for your own internal business purposes subject to the terms of these terms of service. Subject to these terms of service, you grant to efoil the non-exclusive, worldwide, right to use, copy, store, transmit and display Customer Data provided by you as part of your lawful use of efoil solely to the extent necessary to provide the efoil service.

Intellectual Property Restrictions

You are permitted to store, manipulate, analyze, reformat, print, and display efoil content of the efoil site only for your internal business use. Unauthorized use, resale or commercial exploitation of the efoil service and efoil content in any way is expressly prohibited. You agree not to reverse engineer the efoil service, or access the efoil service in order to

•   build a competitive product or service;
•   build a product using similar ideas, features, functions or graphics of the efoil service; or
•   copy any ideas, features, functions or graphics of the efoil service.

You are not permitted to

• license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the efoil service or any data or content stored on or displayed by the efoil service ("efoil content") other than your Customer Data, independently of the efoil service;
• modify or make derivative works based upon the efoil service or the efoil content;
• commercially exploit the efoil service or the efoil content in any way except as part of your internal use of the efoil service; or
• "frame" or "mirror" any efoil content contained in, or accessible from, the efoil service on any other server, wireless or Internet-based device. 

efoil will not use the Customer Data for any purpose other than to provide the efoil service. All rights not expressly granted to you are reserved by efoil and its licensors.

efoil Intellectual Property

efoil alone (and its licensors, where applicable) owns all right, title and interest, including all related intellectual property rights, in and to the efoil's technology, the content of the efoil service (other than Customer Data and content provided by third parties) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the efoil service. These terms of service are a sale and do not convey to you any rights of ownership in or related to the efoil service, efoil's technology or intellectual property. The efoil name, the efoil logo, and the product names associated with the efoil service are trademarks of efoil or third parties, and no right or license is granted to use them.

Site Availability

efoil will generally make the efoil service available continuously. However, efoil will, from time to time, make the efoil service unavailable for maintenance and upgrades, and efoil reserves the right to make the efoil service unavailable for any reason. You agree that efoil has no liability for any damages whatsoever arising from any interruption, suspension or termination of the operation of the efoil service.

efoil's service is subject to the limitations and delays inherent in the use of the Internet and software.  You agree that efoil is not responsible for any damages resulting from such limitations and delays.

Passwords

efoil will create for each organization authorized to use the efoil system an administrative user with a unique user name and password. The administrative user may thereafter create other users on behalf of that organization. Each organization is responsible for all actions, errors and omissions related to the use of the efoil service by users related to that organization. Each organization is required to ensure that users related to that organization conform to efoil's rules and conduct business solely on behalf of that organization. Each organization is solely responsible for the security of its passwords and user names. Each organization is solely liable for any damages whatsoever to any party arising from the failure of the organization or user to maintain the security of its user name and passwords. You agree that efoil has no liability for any damages to any party as a consequence of the management and supervision by that party of user names and passwords.

Interactions with Third Parties

During use of the efoil service, you may enter into correspondence with, purchase goods and/or services from, customers of efoil and advertisers or sponsors offering their goods and/or services through the efoil service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. efoil and its licensors have no liability, obligation or responsibility for any such correspondence or purchase between you and any such third-party. efoil does not endorse any sites on the Internet that are linked through the efoil service.

Intentional Interference with the efoil Service

You will not tamper in any way with the software or functionality of the efoil service.  You will not put any computer programs, information or data into the efoil service that contains any viruses, time bombs, trojan horses, worms, scripts, denial of service attack software or other computer programming routines that may damage, interfere with, intercept or expropriate the efoil service or any data or content contained within or used by the efoil service.

Illegal Use

You will not use the efoil service for any unlawful purpose or in anyway that might harm, damage or disparage any other party. Without limiting the proceeding sentence and by way of example, you agree that you will not:

• threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
• publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, immoral or otherwise objectionable material or information;
• create a false identity or impersonate another for the purpose of misleading others as to your identity or the identity of your organization;
• attempt to gain unauthorized access to the efoil service, user names and passwords of others, or computer systems and networks connected to the efoil service;
• permit any party to gain access to or use the efoil service using a user name and password provided to them by you, other than for legitimate purposes on behalf of your organization;
• upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
• upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation (commercial or otherwise);
• post fraudulent information; or
• use the efoil service in any manner that could lead to a violation of any applicable laws, rules or regulations.

efoil may, in its sole discretion, take any action that efoil deems necessary or appropriate with respect to any information if efoil believes such information may give rise to a claim of liability against efoil or any other parties or interfere with or impair efoil's relationship with any user or organization, including, without limitation, removal of such information or termination or suspension of the use by the posting user or organization of the efoil service.

Confidential Information

You will not disclose any information or data provided to the efoil service by any other user of the efoil service to any third party, without the consent of the other party. You will not disclose any confidential information of the efoil service, such as user names, passwords and information exchanged with other users except on a need-to-know basis within your organization. You will not attempt to obtain another user's confidential information, including, but not limited to, the breach or attempted breach of the security of another user's computer, software or data.

Information Posted on the Web Site

You are solely responsible for information that you post on the efoil service. efoil does not endorse any information posted on the efoil service by users or third parties. efoil has no obligation to monitor the content on the efoil service or links to other web sites, and efoil expressly disclaims any responsibility to filter any such content. efoil accepts no liability, for any damages whatsoever arising from the use of information posted on the efoil service by users or information obtained from third parties.

Relationship between efoil, Inc. and You

You and efoil are independent contractors, and no agency, partnership, joint venture, employer-employee, franchiser-franchisee or other similar relationship is intended or created by your acceptance of these terms and conditions or use of the efoil service.

No Warranty

EFOIL, INC. PROVIDES THE EFOIL SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTY OR CONDITION, EXPRESS OR IMPLIED. YOU AGREE THAT YOUR USE OF THE EFOIL SERVICE IS AT YOUR SOLE RISK. EFOIL, INC. EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO

• THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THE RIGHTS OF ANY THIRD PARTY, AND
• ANY WARRANTY OR REPRESENTATION THAT EFOIL SERVICE WILL BE CONTINUOUSLY AVAILABLE AND FREE OF ERROR.

Limitation of Liability

As a condition to membership hereunder, and in consideration of the services provided by efoil, you agree that neither efoil, nor any officer, affiliate, director, shareholder, agent or employee of efoil will be liable to you or any third party for any direct, indirect, incidental, special, punitive, or consequential loss of profits, loss of earnings, loss of business opportunities, damages, loss of data or expense or costs resulting directly or indirectly from, or otherwise arising (including negligence) out of or in any way connected to:

• the use of the efoil service by you, your employees and agents, including, but not limited to, damages resulting from or arising out of your reliance on the efoil service or the mistakes, omissions, interruptions, errors, defects, delays in operation, transmissions, eavesdropping by third parties, or any failure of performance of the efoil service;
• the unavailability of the efoil service for any reason and for any length of time;
• the termination or suspension of your membership by efoil pursuant to these terms and conditions;
• infringement by you of other's intellectual property rights; or
• government restrictions, strikes, war, any natural disaster or force majeure and problems or damages caused by or attributable to third parties; and
• any other condition beyond efoil's reasonable control;

even if efoil has been advised of the possibility of such damages.

In no event whatsoever will the liability of efoil to you or any party claiming through you or advancing a claim based on your relationship with efoil, or your liability to efoil, exceed the amounts actually received by efoil from you for services rendered by efoil during the 12 calendar months immediately preceding the occurrence of the event giving rise to such claim.

Mutual Indemnification

You indemnify and hold efoil, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:

• a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party;
• a claim, which if true, would constitute a violation by you of the representations and warranties; or
• a claim arising from the breach by you of this Agreement, provided that
  • efoil gives you prompt written notice of the claim;
  • efoil gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless it unconditionally releases efoil of all liability and such settlement does not affect efoil 's business or the efoil service);
  • efoil provides to you all reasonably available information and assistance (at your reasonable expense); and
  • efoil has not compromised or settled such claim.

efoil will indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:

• a claim alleging that the efoil service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or trademark of a third party;
• a claim, which if true, would constitute a violation by efoil of its representations or warranties made in these terms of service; or
• a claim arising from breach of these terms of service; provided that
  • you give efoil prompt written notice of the claim;
  • you give efoil sole control of the defense and settlement of the claim (provided that efoil may not settle or defend any claim unless it unconditionally releases you of all liability);
  • you provide to efoil all reasonably available information and assistance (at efoil's reasonable cost); and
  • you have not compromised or settled such claim.

efoil has no indemnification obligation, and you will indemnify efoil pursuant to these terms of service, for claims arising from any infringement arising from the combination of the efoil service with any of your products, service, hardware or business processes.

Export Controls

efoil provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. You agree that you will not use the efoil service, and you will not transfer, export or re-export any of the information, software, or technology provided by efoil or other customers or any third party through the efoil service to any countries in respect of which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using this site, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000

Local Laws

efoil and its licensors make no representation that the efoil service is appropriate or available for use outside of the United States of America. If you use the efoil service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.

Statute of Limitations

Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the efoil service or these terms and conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Notices

Except as otherwise explicitly stated in these terms and conditions, any notices shall be given by e-mail to customerservice@efoil.com (in the case of efoil) and to your administrative email address as maintained by you on your efoil records. Notice shall be deemed given 24 hours after any email is sent, unless the sending party is notified within such 24-hour period that the recipient's email address is invalid or the email was not delivered. Alternatively, efoil may give you notice by commercial courier service or by certified mail, postage prepaid and return receipt requested, to the address provided to efoil during the registration process. In such case, notice shall be deemed given when received.

Miscellaneous; Interpretation

These terms and conditions constitute the entire agreement and understanding between you and efoil with respect to the subject matter of these terms and conditions and supercedes and replaces any and all prior written or verbal agreements. Headings are for references only. A party's failure to insist upon or enforce strict performance of any provision of these terms and conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and efoil, nor trade practice, shall act to modify any provision of these terms and conditions. It is the desire and intent of you and efoil that the provisions of these terms and conditions be enforced to the fullest extent possible under applicable law. Accordingly, if any particular provision of these terms and conditions is held to be invalid or unenforceable, such determination shall not affect any other provision of these terms and conditions which shall remain in full force and effect.

Termination

If you violate these terms of service, efoil may terminate your right and the rights of any related party to use the efoil service and thereafter exclude you or them from the efoil service.   efoil has no obligation to maintain your Customer Data or make it available to you if your use of the efoil service is terminated for a violation of these terms of service.

Changes to the Terms and Conditions

efoil reserves the right to amend these terms and conditions from time to time by posting such amended terms and conditions on the efoil service.    Such terms will become effective 60 days after they are posted.  Continued use of the efoil service after any such changes constitutes your consent to such changes.

Governing Law; Jurisdiction

These terms and conditions and the relationship between you and efoil shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without regard to its conflict of law provisions. You agree that any controversy or claim arising out of or relating to these terms and conditions and the relationship between you and efoil shall be submitted to the personal and exclusive jurisdiction of the state and/or federal courts located within the State of New York.