TERMS OF SERVICE
Welcome to eScuba! By joining, you're agreeing to abide by the Terms of Service
("TOS") below. eScuba, Inc. ("eScuba") has adopted these TOS
to protect you and ensure that eScuba is safe and fun for all of us. If you
encounter another member who isn't following any of the TOS, please let us know.
- Acceptance of Terms
- Description of Service
- Registration Obligations
- Privacy Policy
- Member Name, Password and Security
- Member Conduct
- Public Content
- Third-Party Services
- Links
- Indemnity
- General Practices Regarding Use and Storage
- Termination
- eScuba's Proprietary Rights
- Disclaimer of Warranties
- Limitation of Liability
- Exclusions and Limitations
- Trademark and Service Mark Information
- Copyrights
- General Information
1. Acceptance of Terms
eScuba provides its service to you subject to these TOS, which we may modify
from time to time without notice to you. You can review the most current version
of these TOS at any time at http://www.escuba.com/corporate/service.asp?WCI=Service. From time to time, eScuba may post additional guidelines or rules
applicable to specific content or events which supplement these TOS. All such
guidelines or rules are hereby incorporated by reference into these TOS.
You may view portions of eScuba simply by visiting the eScuba.com Web site (the
"Site"). However, in order to access the bulletin boards, chat rooms
and other community features, or to list yourself in our dive buddy directory or
get our free Web-based email service, you need to register as a member. Members
and visitors are referred to collectively as "Users."
Please read these TOS carefully. By clicking on the "submit this form and
sign me up!" button on the member registration form ("Submit
Button") or otherwise accessing the Site or using any of the services
provided on the Site, you agree to be bound by the terms and conditions of these
TOS, and your continued access of the Site and/or use of such services
constitute your acceptance of any additional or different terms and conditions
added to these TOS in the future. If you do not accept all of the terms and
conditions of these TOS, do not click on the Submit Button, and you will not be
registered as a member of eScuba; however, your continued access to the Site and
use of any non-member services constitutes your acceptance of those terms and
conditions of these TOS relating to such access and use.
2. Description of Service
eScuba currently provides Users with access to a wide array of online resources,
including various communication tools, online forums, personalized content and
branded programming through its network of properties (the "Service").
Unless explicitly stated otherwise, any new features that augment or enhance the
current Service, including the release of new eScuba properties, will be subject
to these TOS. eScuba may modify or discontinue the Service, temporarily or
permanently, with or without notice to you and without liability to you or any
third party.
3. Registration Obligations
In consideration of your use of the Service, you agree to provide true,
accurate, current and complete information about yourself in the Service's
registration form, and to maintain and promptly update such information to keep
it true, accurate, current and complete. If you provide any information that is
untrue, inaccurate, not current or incomplete, or eScuba has reasonable grounds
to suspect that such information is untrue, inaccurate, not current or
incomplete, eScuba has the right to suspend or terminate your account and refuse
any and all current or future use of the Service (or any portion thereof).
4. Privacy Policy
Registration data and certain other information about you is subject to our
Privacy Policy. For more information, please see our full privacy policy at http://www.escuba.com/corporate/privacy.asp?WCI=Privacy.
We reserve the right to
amend our Privacy Policy at any time.
5. Member Name, Password and Security
You will receive a member name and password upon completing the registration
process. You are responsible for maintaining the confidentiality of your
personal information and password, and you are solely responsible for all
activities that occur under your member name or password.
You agree to immediately notify eScuba of any unauthorized use of your member
name or password or any other breach of security that you become aware of, and
you will ensure that you have signed off from your account at the end of each
session. eScuba is not responsible or in any way liable for any loss or damage
arising from your failure to comply with these requirements.
6. Member Conduct
You understand and agree that all information, data, text, software, music,
sound, photographs, graphics, video, messages or other materials
("Content"), whether publicly posted on the Site or privately
transmitted using it, are the sole responsibility of the person or party from
which such Content originated. This means that you, and not eScuba, are solely
responsible for all Content that you upload, post, email or otherwise transmit
via the Service. eScuba does not actively monitor the Content and does not
guarantee the accuracy, integrity or quality of such Content.
You understand that by using the Service, you may be exposed to Content that is
offensive, indecent or objectionable. In addition you understand that when
publicly posting or privately transmitting any Content on the Site, you must be
careful to limit the type and amount of personally identifying information that
you disclose. eScuba cannot and will not be liable in any way in connection with
the resulting use of such information.
You acknowledge that eScuba does not pre-screen Content, but that eScuba and its
designees will have the right, but not the obligation, in their sole discretion
to refuse to post, store or transmit any Content, or to move, remove, edit or
modify any Content as eScuba deems appropriate.
Any use by you of any other User's information, personal or otherwise, for any
commercial purpose or to obtain direct financial gain (for example, by mass
marketing) is prohibited. The Service is to be used by you for your personal use
only. Commercial uses of the Service are strictly prohibited unless prior
written consent from eScuba has been granted.
You agree that you will not use the Site and/or the Service to:
(a.) upload, post, email or otherwise store or transmit any Content that is
unlawful, harmful, threatening, abusive, harassing, tortious, defamatory,
vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially,
ethnically or otherwise objectionable;
(b.) impersonate any person or entity including, without limitation, any eScuba
employee, agent, or affiliate, or falsely state or otherwise misrepresent your
affiliation with any person or entity;
(c.) upload, post, email or otherwise store or transmit any Content that you do
not have a right to collect, use, store or transmit under any law or under any
contractual or fiduciary relationships (including, without limitation, inside,
proprietary and confidential information learned or disclosed as part of
employment or fiduciary relationships or under nondisclosure agreements);
(d.) upload, post, email or otherwise store or transmit any Content that
infringes any patent rights, trademark rights, trade secret rights, copyrights
and all other intellectual and industrial property rights of any kind anywhere
in the world of any third party;
(e.) upload, post, email or otherwise transmit any unsolicited or unauthorized
advertising, promotional materials, "junk mail," "spam,"
"chain letters," "pyramid schemes," or any other form of
solicitation;
(f.) upload, post, email or otherwise store or transmit any Content that
contains software viruses or any other computer code, files or programs designed
to interrupt, destroy or limit the functionality of any computer software or
hardware or telecommunications equipment;
(g.) interfere with or disrupt the Site, the Service or any servers or networks
connected to the Site or used with the Service, or disobey any requirements,
procedures, policies or regulations of any networks connected to the Site or
used with the Service;
(h.) violate any applicable local, state, national or international law
including, without limitation, applicable state and federal lending and mortgage
related laws and regulations, regulations promulgated by the U.S. Securities and
Exchange Commission, any rules of any national or other securities exchange, and
any other regulations having the force of law;
(i) distribute or send any illegal material of any kind, including, but not
limited to, illegal material in the form of text, graphics, video, programs or
audio; or
(j.) collect or store personal data about other Users, 'stalk' or otherwise
harass another person, or harm minors in any way.
In appreciation of the global nature of the Internet, you agree to comply with
all local rules regarding online conduct and acceptable Content. You
specifically agree to comply with all applicable laws regarding the transmission
of technical data exported from the United States or the country in which you
reside.
7. Public Content
For purposes of these TOS, "publicly accessible areas of the Service"
are those areas generally accessible to eScuba's Users. By way of example, a
publicly accessible area of the Service would include public eScuba community
groups but would not include private eScuba community groups or private eScuba
communication services such as eScuba email and instant messaging services.
With respect to Content that you elect to post for inclusion in public eScuba
community groups or that consists of photos or other graphics you elect to post
to any other publicly accessible area of the Service, you grant eScuba the
worldwide, royalty-free, fully paid-up, perpetual, non-exclusive right and
license to reproduce, modify, adapt, publicly perform and display, create
derivative works of, and publish such Content (in whole or in part) on the Site
and through the Service solely for the purpose of displaying, distributing and
promoting the Site or the Service.
With respect to all other Content that you elect to post to other publicly
accessible areas of the Service, you grant eScuba the royalty-free, perpetual,
irrevocable, non-exclusive, worldwide and fully sublicensable right and license
to use, reproduce, modify, adapt, publish, translate, create derivative works
from, distribute, perform and display such Content (in whole or in part) and/or
to incorporate it in other works in any form, media, or technology now known or
later developed.
Anything contained herein to the contrary notwithstanding, by submitting Content
to any contests on the Service, you hereby expressly permit eScuba to identify
you by your member name as the contributor of such Content to the contest in any
publication in any form, media or technology now known or later developed in
connection with the Content, unless you otherwise notify eScuba in writing at
the time you submit the Content that you do not wish to be identified in this
manner.
8. Third-Party Services
You may order goods or services through the Site or using the Service from third
parties not affiliated with eScuba. Your correspondence or business dealings
with, or participation in promotions of, such third parties, 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 eScuba will not 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,
and you agree to indemnify and hold eScuba harmless form any such damages or
liabilities.
eScuba and/or third parties may, from time to time, send email messages to you
containing advertisements, promotions, etc. eScuba makes no representation or
warranty with respect to the content of any such email messages or any goods or
services which may be obtained from such third parties, and you agree that
eScuba will not have any responsibility with respect thereto.
9. Links
The Service may provide, or third parties may provide, links to other Web sites
or resources. eScuba has no control over such sites and resources, and you
acknowledge and agree that eScuba is not responsible for the availability of
such external sites or resources, and does not endorse and is not responsible or
liable for any Content, advertising, products or other materials on or available
from such sites or resources, or for any damage or loss caused or alleged to be
caused by or in connection with use of or reliance on any such Content, goods or
services.
10. Indemnity
You agree to indemnify and hold eScuba and its subsidiaries, affiliates,
officers, employees, agents, co-branders and other partners, harmless from any
third party loss, liability, claim, damage, and expenses, including reasonable
attorneys' fees, due to or arising out of (i) your violation of any term or
condition of these TOS, (ii) any transaction entered into between you and any
third party, (iii) your violation of any rights of another, or (iv) your
participation in any way in the sports of skin and scuba diving and all related
activities.
11. General Practices Regarding Use and Storage
You acknowledge that eScuba may establish general practices and limits
concerning use of the Service, including without limitation the maximum number
of days that email messages, message or bulletin board postings or other
uploaded Content will be retained by the Service, the maximum number of email
messages that may be sent from or received by an account on the Service, the
maximum size of any email message that may be sent from or received by an
account on the Service, the maximum disk space that will be allotted on eScuba's
or its suppliers' servers on your behalf, and the maximum number of times (and
the maximum duration for which) you may access the Service in a given period of
time. You agree that eScuba has no responsibility or liability for the deletion
or failure to store any messages and other communications or other Content
maintained or transmitted by the Service. You acknowledge that eScuba reserves
the right to log off or sign out accounts that are inactive for an extended
period of time. You further acknowledge that eScuba reserves the right to change
these general practices and limits at any time, in its sole discretion, with or
without notice.
12. Termination
You agree that eScuba, in its sole discretion, may terminate your password,
account (or any part thereof) or use of the Service, and remove and discard any
Content within the Service, for any reason and without notice or liability to
you or any third party including, without limitation, for lack of use or if
eScuba believes that you have violated or acted inconsistently with the letter
or spirit of these TOS. Termination of this Agreement will not relieve you of
any liabilities or obligations accrued on or before the date of termination, or
limit any other remedies available to eScuba arising out of your breach of these
TOS. Your indemnification obligations will continue after any termination.
13. eScuba's Proprietary Rights
For the purposes of this Section 13, the term "eScuba Content" means
all Content on the Site, excluding Content that you provide to eScuba for use in
any way on the Site. You acknowledge and agree that the Service and any software
used in connection with the Site ("Software") contain proprietary and
confidential information that is protected by intellectual property and other
laws. You further acknowledge and agree that Content contained in sponsor
advertisements or information made available to you on the Site or through the
Service is protected by copyrights, trademarks, service marks, patents or other
proprietary rights and laws. You agree that eScuba and its licensors own all
right, title and interest in the Site, the Service, the Software and the Content
on the Site (subject to your rights in Content that you provide to eScuba for
use in any way on the Site) and, except as expressly authorized by eScuba (or
its advertisers and licensors, as applicable), you agree not to reproduce,
modify, rent, lease, loan, sell, perform, link, display, distribute, create
derivative works based on, or otherwise exploit in any way any portion of the
Site, the Service, the eScuba Content or the Software (or access to the
foregoing), in whole or in part. You may only make a single copy of the eScuba
Content displayed on the Site solely for your personal use, provided that you do
not remove any trademarks, copyright notices or any other notice contained in
such eScuba Content and that you do not perform, display, distribute in any way
or otherwise make available such eScuba Content to any third party, without the
prior written consent of eScuba.
14. Disclaimer of Warranties
The Content provided on the Site and through the use of the Service (including,
without limitation, information in eScuba bulletin boards, articles, and trivia
questions) comes from a variety of sources. eScuba does not represent or endorse
the accuracy, timeliness, reliability, completeness, effectiveness or use of any
such Content, nor the quality of any products, information or other materials
displayed, purchased, or obtained by you as a result of an advertisement or any
other information or offer in or in connection with the Site or the Service (the
"Products"). Any reliance upon such Content or Products shall be at
your sole risk.
eScuba is not responsible for any health problems, accidents or personal
injuries that may directly or indirectly result from your (i) use of the Service
or any Content provided on the Site, (ii) use of Products, or (iii)
participation in any event or activity described, scheduled, reserved or
otherwise announced on the Site or through the Service. You agree to consult a
physician to assess the health risks attendant to your participation in any such
activity, and you are solely responsible to ascertain and independently verify
the information that you (and your physician) rely on to assess the health,
safety and other risks attendant to your participation in any such event or
activity. You understand that eScuba does not screen, qualify, monitor, verify
or approve any "dive buddy" information submitted through the Site,
and that you are solely responsible to determine and verify the qualifications
of any person that you choose to dive with. Reliance on any Content and Products
(including, without limitation, information, services, and products concerning
the certification, safety, health risks and other risks associated with scuba
diving) for such purposes is at your sole risk. By using the Service or any of
the Content or Products provided on or through this Site, you agree to indemnify
and hold eScuba (and its subsidiaries, affiliates, officers, employees, agents,
co-branders and other partners) harmless from any third party loss, liability,
claim, damage, and expenses (including reasonable attorneys' fees) due to or
arising out of such use, or otherwise resulting from your negligence or
misconduct.
You acknowledge that when you choose to list yourself as a dive buddy, we will
make your email address, age, sex, scuba diving certification level, skill
level, and interests, as well as any comments you wish to add available to other
Users. You understand that eScuba cannot be responsible for the use of such
information by other Users and agree that placing yourself on the buddy list,
disclosing additional personal information in the comments section, and entering
into any subsequent communication or activity with other Users is done at your
sole risk. As with any such communication with people unknown to you through the
Internet, you must be careful and exercise caution.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SITE AND THE SERVICE IS AT YOUR SOLE RISK. THE SITE AND THE
SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
ESCUBA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. ESCUBA MAKES NO WARRANTY THAT (I) THE SITE OR THE SERVICE WILL MEET YOUR
REQUIREMENTS, (II) THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY,
SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF
THE SITE OR THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY
PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
ON THE SITE OR THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY
ERRORS IN ANY SOFTWARE ON THE SITE OR USED IN CONNECTION WITH THE SERVICE WILL
BE CORRECTED.
c. ESCUBA IS NOT RESPONSIBLE AND WILL HAVE NO LIABILITY FOR (I) HARDWARE,
SOFTWARE, OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSONS OR ENTITIES OTHER
THAN ESCUBA, (II) FAILURES OF THE INTERNET OR ANY DATA OR TELECOMMUNICATIONS
EQUIPMENT, SYSTEM OR NETWORK USED IN CONNECTION WITH THE SITE OR THE SERVICE,
(III) ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE
DOWNLOADING OF ANY MATERIAL AVAILABLE ON THE SITE OF THROUGH THE SERVICE, (IV)
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR ACCOUNT, COMMUNICATIONS,
TRANSMISSIONS, CONTENT OR DATA, (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON
THE SITE OR THE SERVICE.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU ON THE
SITE OR THROUGH THE SERVICE SHALL CREATE ANY REPRESENTATION OR WARRANTY BY
ESCUBA NOT EXPRESSLY STATED IN THESE TOS.
15. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ESCUBA, ITS PARTNERS AND AFFILIATES WILL
NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TOS UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR
(I) ANY AMOUNT IN EXCESS IN THE AGGREGATE OF THE FEE PAID BY YOU FOR THE
SERVICE, IF ANY, DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
DATE THAT ANY CLAIM ARISES OR, IF LESS, OF ONE THOUSAND ($1,000) US DOLLARS,
(II) ANY LOST DATA OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES, EVEN IF ESCUBA, ITS PARTNERS AND AFFILIATES HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, OR (III) THE COST OF PROCURING SUBSTITUTE
GOODS, SERVICES OR TECHNOLOGY.
16. Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 14 AND 15 MAY NOT APPLY
TO YOU.
17. Trademark and Service Mark Information
eScuba, eScuba.com, the eScuba logo, My eScuba, Bonnie's Bookshelf, and other
eScuba logos and product and service names are service marks of eScuba, Inc.
(the "eScuba Marks"). Other brands, company names, product names and
logos on the Site are also trademarks or service marks of eScuba, its partners
and licensors. The use of any eScuba Mark or any eScuba partner or licensor
trademark or service mark without eScuba's (or the appropriate owner's) express
written consent is strictly prohibited.
18. Copyrights
eScuba respects the intellectual property of others, and we ask our users to do
the same. If you believe your work has been copied in a way that constitutes
copyright infringement, please use the following process to notify us.
All claims of copyright infringement should be in writing and should be directed
to eScuba's designated agent at the following address, fax number or email
address:
Ruby Sabounchi
Senior Manager
30308 Esperanza,
Rancho Santa Margarita, California 92688
USA
Phone: 949.459.9400
Fax: 949.459.9900
email: copyrights@escuba.com
Each claim of copyright infringement must include all of the following:
1.) A physical or electronic signature of a person authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.
2.) Identification of the copyrighted work claimed to have been infringed, or if
multiple copyrighted works at a single Web site are covered by a single claim, a
representative list of such works at that Web site.
3.) Identification of the material that is claimed to be infringing or to be the
subject of infringing activity and that is to be removed or access to which is
to be disabled, and information reasonably sufficient to permit eScuba to locate
the material.
4.) Information reasonably sufficient to permit eScuba to contact the
complaining party, such as an address, telephone number, and if available, an
email address at which the complaining party may be contacted.
5.) A statement that the complaining party has a good faith belief that the use
of the material in the manner complained of is not authorized by the copyright
owner, its agent, or the law.
6.) A statement that the information in the notice 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.
Please note that it is eScuba's policy to terminate, under appropriate
circumstances, the account of any User who repeatedly infringes the copyrights
of others.
19. General Information
These TOS constitute the entire agreement between you and eScuba and govern your
use of the Service, superceding any prior agreements between you and eScuba. You
also may be subject to additional terms and conditions that may apply when you
use affiliate services, third-party content or third-party software. Notices to
you may be made available via either email or regular mail, and the Service may
also provide notices of changes to these TOS or other matters by displaying
notices or links to notices to you generally on the Service. These TOS and the
relationship between you and eScuba shall be governed by the laws of the State
of California without regard to its conflict of law provisions. You and eScuba
agree to submit to the personal and exclusive jurisdiction of the courts located
within the county of Orange, California. The failure of eScuba to exercise or
enforce any right or provision of these TOS shall not constitute a waiver of
such right or provision. If any provision of these TOS is found by a court of
competent jurisdiction to be invalid, the parties nevertheless agree that the
court should endeavor to give effect to the parties' intentions as reflected in
the provision, and the other provisions of these TOS remain in full force and
effect. You agree that regardless of any statute or law to the contrary, any
claim or cause of action arising out of or related to use of the Service or
these TOS must be filed within one (1) year after such claim or cause of action
arose or be forever barred. The section titles in these TOS are for convenience
only and have no legal or contractual effect.
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