Hires Big H User Agreement

USER AGREEMENT

The User Agreement (the “Agreement”) on this page includes terms, notices, and conditions (“Terms and Conditions”) that govern the use of the HIRES INTERMOUNTAIN DRIVE-INS, INC, and HIRES ENTERPRISES, INC. (collectively “HIRES”) web site http://www.hiresbigh.com/ (the “Web Site”) and associated materials. You (“Your,” “Yours,” and “User”) should be aware that local, state, and federal laws may apply as well to Your use of this Web Site. Please read this page carefully. If You do not accept all of the Terms and Conditions, do not use the Web Site.

Your use of the Web Site constitutes an explicit assertion that You understand, and unconditionally assent to, all the Terms and Conditions, and You agree to be bound thereby. You should be aware that HIRES may, in its sole discretion, revise any or all of the Terms and Conditions at any time without notice to You. Accordingly, You should visit the Web Site periodically to review the Terms and Conditions by which You are bound.

TERMS AND CONDITIONS

1.    Definitions.

1.1    Materials. The “Materials” include the contents of the Web Site such as, but not limited to, text, hypertext markup language (HTML) script, software, logic, ideas, programs, source code, executable code, graphics, images, audio (e.g., .wav), video clips, photographs, digital picture files (e.g., .jpeg, .jpg, .gif), illustrations, multimedia materials, and other materials, whether accessible free of charge or through a Subscription.

1.2    Software. Software that is now, or may become, available for downloading from the Web Site, but does not include software that is accessible or downloadable by way of third party linked web sites.

1.3    Subscription & Subscription Materials. Materials and/or services available on, or by way of, the Web Site (the "Subscription Materials") and offered to the User conditioned on the User's purchase of fee-based access (the "Subscription").

1.4    Other Definitions. Definitions of other terms are as provided for herein.

2.    Access to the Web Site. HIRES retains the right and sole discretion to regulate, to the extent it deems desirable, access to all portions of the Web Site including, but not limited to, the Materials, the Web Site, the Software, and the Subscription Materials, or the Subscription, and to suspend the operation of the Web Site or any portion thereof, at any time and without notice to User.

3.    Use of the Web Site.

3.1    Interference with Web Site Functionality. User agrees not to compromise, or attempt to compromise in any way, the operation or accessibility of the Web Site or the integrity of the Materials or Software, or systems, programming, practices, and procedures relating thereto, through any means, software, device, or routine including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or any other means expressly or impliedly prohibited by, or inconsistent with, any provision of this Agreement.

3.2    Misrepresentation of User or Others. User agrees not to use any trademarks, service marks, names, logos, or other identifiers of the Web Site, HIRES, or HIRES' employees, licensors, independent contractors, providers and affiliates, or business partners, (collectively, the "Affiliates") without the prior written permission of HIRES and/or the relevant Affiliate(s). In addition, User shall not use HIRES or the Affiliate’s trademarks or service marks:
(i) in, as, or as part of, User's own trademarks or service marks or those trademarks or service marks of any third parties;
(ii) to identify products or services not originating with or provided by HIRES and the Web Site;
(iii) in a manner likely to cause confusion; or
(iv) in a manner that implies in any way that HIRES or HIRES Affiliates sponsor, endorse, or are otherwise associated with, User's own activities, products and services or the activities, products, and services of third parties.

3.3    Other. Other terms and conditions regarding the use of the Web Site, Materials and Software are as enumerated elsewhere herein.

 

 

4.    Intellectual Property.

4.1 Ownership. HIRES hereby owns and retains any and all intellectual property rights, title, and interest in and to the Web Site, Materials, Software, (as that term is defined herein) and all software, systems, programming, practices, and procedures regarding the Web Site, Materials and Software, with the exception of any materials that may be in the public domain, or are owned by the government or third parties, wherein such intellectual property rights, title, and interest include, but are not limited to, those rights provided for under patent, trademark, trade dress, and trade secret laws. HIRES likewise owns and retains the sole and exclusive discretion to license, sell, and/or distribute the Materials, Software, Web Site, and all software, systems, programming, practices, and procedures relating to the Materials, Software and Web Site. User does not acquire any ownership rights of any kind in the Materials, Web Site, or Software by downloading, accessing, or using the Materials, Web Site or Software.

4.2    No Derivative Works. User may not modify or create derivative works from the Materials, Software or the Web Site. User acknowledges and agrees that, notwithstanding the immediately preceding sentence, all intellectual property right, title and interest in and to any such derivative works is the sole and exclusive property of HIRES.

4.3    Prohibited Uses. User may not participate in the transfer or sale of, post on the World Wide Web or other computer network or bulletin board, reproduce, publicly display or present, perform, distribute, or otherwise use or exploit, or cause in any way the use or exploitation of, the Materials, Web Site, or Software, either in whole or in part, for any public or commercial purpose. USER IS SPECIFICALLY PROHIBITED FROM ENGAGING IN, FACILITATING, OR DIRECTING ANY OF THE FOREGOING ACTIVITIES IN CONJUNCTION WITH ANY SEMINARS, WORKSHOPS, CLINICS, COLLOQUIA, SYMPOSIA, LECTURES, PRESENTATIONS, AND THE LIKE WITHOUT THE PRIOR WRITTEN CONSENT OF HIRES.

4.4    Marking. Except as may be provided herein, the Materials, Web Site, and Software are protected under United States and foreign copyright laws. Unauthorized use of the Materials, Web Site, and Software may violate such copyright laws, as well as trademark, and other laws. Therefore, any authorized copy User makes of the Materials, Web Site, or Software shall retain all copyright, trademark, and other proprietary notices contained in the original Materials. Such copyright notice should read:
© 2000, Hires Enterprises, Inc. All rights reserved.

5.    License.

5.1    Limited License. The Parties agree and acknowledge that this Agreement grants to User only a limited license to use the Materials, Web Site, and Software, the aforementioned limited license being subject to the terms and conditions enumerated elsewhere herein. No transfer, assignment, or grant to User of ownership or other rights of any kind is made hereby.

5.2    Scope of the License. HIRES hereby authorizes User to view, download, and retain a single copy of the Materials contained on the Web Site, and the Software, solely for the personal, noncommercial, and informational use of the User. Special rules may apply to the use of certain other items or materials that are provided on, or made accessible by way of, the Web Site. These special rules, if any, are presented on the Web Site in the form of notices detailing the legal constraints on the User’s use of the Web Site, the materials, such as software, and other items (the "Legal Notice"), and are made a part hereof and incorporated into this Agreement by this reference.

6.    Reservation of Rights. All rights not expressly granted by HIRES are hereby reserved.

7.    User Communications.

7.1    Communications with or through the Web Site. As contemplated herein, “communications” include text, information, graphics, documents, video, audio, and the like transmitted by electronic mail, posted to the Web Site, or transmitted or made available by way of the Web Site.

7.2    Confidentiality of Communications.

7.2.1    Communications Presumptively Non-Confidential. Except as otherwise noted herein or elsewhere on the Web Site, all User communications will be considered by HIRES to be non-confidential, wherein such communications may be transmitted in a variety of ways including, but not limited to, electronic mail, and by way of forms provided on the Web Site. User understands and acknowledges that User has no expectation of privacy in any such communications, and that no confidential, fiduciary, contractually-implied or other relationship is created or implied between HIRES and User by reason of such User communications.

7.2.2    Exceptions to Presumption of Non-Confidentiality. If a particular web page of this Web Site permits the transmission of communications that HIRES intends to treat as confidential, that fact will be stated in a Legal Notice presented on such web page.

7.3    License to Communications. By communicating with or through the Web Site, User automatically grants HIRES a royalty-free, perpetual, irrevocable, nonexclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, exploit, and display any and all communications, whether transmitted to or through the Web Site, alone or as part of other works in any form, media, or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees.

7.4    Content and Nature of Communications. User shall not engage in any of the following activities, nor cause or assist other persons or entities to do so:
(i) post material whose use is protected by copyright laws, unless User is the copyright owner of such material;
(ii) post material that reveals confidential information, including, but not limited to, trade secrets, belonging to other entities or parties;
(iii) post material that infringes the intellectual property rights of others or the privacy or publicity rights of others;
(iv) post material that is obscene, defamatory, threatening, harassing, abusive, hateful, or that may be embarrassing to another user or any other person or entity;
(v) post sexually-explicit images, video, or text;
(vi) post advertisements or solicitations of business;
(vii) post chain letters or pyramid schemes; or
(viii) transmit communications intended to create a false impression as to User’s identity or affiliation.

7.5    Screening and Monitoring of Communications. HIRES does not screen User communications, nor is HIRES responsible in any way for screening or monitoring any material posted or transmitted by Users. HIRES may, in its sole discretion, screen and monitor User communications.

7.6    HIRES Discretion to Remove Communications. HIRES reserves the right, in its sole discretion, to at all times to edit, disclose, or refuse to post, request removal of, or remove, any materials or other communications, regardless of source, which HIRES deems abusive, illegal, objectionable, or disruptive in any way. However, HIRES assumes no liability or responsibility to User stemming from the exercise of such discretion.

7.7    No Warranty as to Content of Communications. HIRES cannot, and does not, warrant or guarantee in any way, the truthfulness, accuracy, or reliability of any communications posted by another User nor does HIRES endorse any opinions expressed by any other User. User acknowledges that any reliance on material contained in communications posted by other users will be solely at User's own risk.

7.8    Consequences of use of Communications. User is solely responsible for any and all direct and/or indirect consequences and damages, whether foreseeable or otherwise, arising in connection with the transmission of User communications and/or the use of communications posted or transmitted by others.

8. Links to Third Party Materials.

8.1    No Endorsement by HIRES. The Web Site may contain links to third party web sites, web pages, and other materials. These links are provided solely as a convenience to User and in no way constitute an endorsement by HIRES as to any aspect of the contents on, or available through, such third-party Web Sites. The inclusion of such links does not imply that HIRES or its Affiliates sponsor or are affiliated with or are legally authorized to use any trademark, service mark, trade name, logo or copyright symbol displayed in or accessible through such links, or that such linked web sites are authorized to use any trademark, service mark, trade name, logo or copyright symbol owned by HIRES or by any of HIRES's Affiliates.

8.2    No Warranty as to Content. HIRES has no control over, and is not responsible in any way for, the content of linked third-party web sites and accordingly makes no representations, warranties or guarantees regarding any aspect, including content or accuracy, of materials on, or available through, such third party web sites. If User decides to access linked third-party web sites, User does so at User's own risk. Any concerns that User may have regarding such links should be directed to the administrator or webmaster of the web page(s) and/or web sites associated therewith.

9.    Software License. All Software is protected by United States copyright laws, and may be protected by other local, state, and federal laws, statutes, and regulations as well. Software use is governed by the terms of the software license agreement or the designated Legal Notice that accompanies the Software ("Software License Agreement"). By downloading such Software, You agree unconditionally to be bound by all the terms of the Software License Agreement as well as the Terms and Conditions of this Agreement. In the event of a conflict between the terms of this Agreement, the Software License Agreement, and the Legal Notice, the terms and provisions of the Software License Agreement shall control.

10.    Subscriptions.

10.1    Subscriptions. At HIRES’s option, some of the Materials and/or services available on, or by way of, the Web Site (the "Subscription Materials") may be offered to the User conditioned on the User's purchase of fee-based access (the "Subscription"). User can request such a subscription by transmitting to HIRES a Subscription purchase request. By making such request, User warrants and represents that all information that User submits is true, accurate, and complete (including without limitation, User’s legal name, legal address, email address, telephone number, credit card number and expiration date ("Subscription Data")), and User agrees to pay all Subscription fees User may incur, as well as any and all applicable taxes or other charges. HIRES reserves the right to increase fees, surcharges, and Subscription fees, or to institute new fees at any time, upon reasonable notice, wherein such reasonable notice will be posted on the Web Site.

10.2    Cancellation of Subscription. User may cancel User's Subscription to any Subscription Materials by notifying HIRES. If User has purchased an automatically renewing Subscription, User will not be charged the monthly fee thereafter (but there are no refunds of the Subscription fees previously paid). No cancellation of access to free Materials and/or services or to non-renewing access is required. Finally, HIRES reserves the right and sole discretion to modify or remove Subscription Materials and/or to deny access to the Subscription Materials, at any time and without notice.

10.3    Access to Subscription Materials.

10.3.1    Userid. As part of granting the Subscription, or access to the Web Site, HIRES may issue to User a password and a user identification (collectively, the "Userid"). User is solely responsible for maintaining the confidentiality of the Userid and agrees that HIRES will have no obligations with regard to the confidentiality of such Userid. User shall take all reasonable steps to ensure that User's Subscription Data is current and accurate, and, if not, shall correct, or update the Subscription Data. If User fails to comply with this provision, HIRES may, in its sole discretion, immediately suspend or terminate User's right to utilize User's Subscription. In the event that User is an individual who uses a corporate password and Userid, User shall, upon termination of employment with the entity providing corporate access, timely inform HIRES of such termination.

10.3.2    Security of Userid. User's Subscription and Userid are personal to User and User may not transfer or otherwise make available User's Userid to any other person or entity. Any distribution by User of User's Userid may result in cancellation of User's Subscription without refund and, in addition, charges based on unauthorized use. User is financially responsible for all usage or activity engaged in by way of User's Userid, whether such usage or activity is engaged in by User or by others. User agrees to promptly notify HIRES in the event that User becomes aware of, or suspects, a breach of security, including loss, theft, or unauthorized disclosure of User's password and/or Userid. In the event of a breach of the confidentiality of User’s Userid, User shall remain liable for any unauthorized use of User's Subscription until such time as User notifies HIRES.

10.4    Remote Access Charges. User is responsible for all charges associated with communicating with and through the Web Site, including, but not limited to, all fees and charges associated with telephone access lines (including long-distance charges, when applicable), telephones, and computer equipment.

11.    Use of User Information.

11.1    Subscription Data. HIRES reserves the rights to: (i) use and disclose User’s Subscription Data for HIRES internal business and marketing purposes, including, but not limited to, generation and distribution of demographic reports (including reports on usage patterns of users) and marketing statistics, provided however, that HIRES shall not reveal the identity of any particular User; and, (ii) without prior notice to User, disclose any Subscription Data or other information regarding User to law enforcement and government agencies, upon their request.

11.2    Third Party Use or Disclosure of Subscription Data. User acknowledges and agrees that HIRES is in no way responsible for the disclosure or use of User’s Subscription data (or any other information User may provide to HIRES), or any damage or loss resulting there from, stemming from unauthorized access to or attacks on the Web Site and related networks and servers, such as by “hacking” and the like. Likewise HIRES is not responsible for the disclosure and/or use, by third parties, of User’s Subscription data.

 

 

12.    Modifications to the Materials, Web Site, and Software. HIRES retains the right and sole discretion to modify the Web Site or any portion thereof, including, but not limited to, this Agreement, the Materials, the Web Site, the Software, the Subscription Materials, or the Subscription. Such modification shall be effective immediately upon posting to the Web Site or distribution via electronic mail or conventional mail and may be effectuated by HIRES at any time without notice or liability to User. User’s continued use of the Web Site, Software, Materials, or Subscription Materials following notice of any such modification shall be conclusively deemed an unconditional acceptance of the entirety of such modification. In the event User disagrees with, or does not wish to accept, any such modification, User’s sole remedies are to discontinue use of the Web Site, Materials and Software and/or to cancel User’s Subscription.

13.    HIRES’s Liability. HIRES’s aggregate liability to User for any and all claims arising from the use of the Materials, the Web Site, Software, or Subscription Data is limited to Your Subscription fee (if any).

14.    Warranties and Disclaimers.

14.1    Accuracy, Reliability, Completeness. User understands and acknowledges that the Web Site, Software, and Materials may include errors and omissions, and that HIRES makes NO representation, warrantee, or guarantee of any kind as to the accuracy, reliability, completeness, or timeliness of the Materials, the Software, the Web Site, functions made accessible by or accessed through the Web Site, products or services made available on or through any third party linked web sites, or any materials posted on or transmitted through the Web Site by third parties.

14.2    Error-Free Operation. HIRES does NOT warrant that the operation of the Web Site, Software or Materials will be uninterrupted or error-free. Nor does HIRES warrant that any defects in the Web Site, Software or Materials will be corrected, or that the Web Site, Software or Materials are free from computer viruses, infections, worms, time bombs, Trojan horses, or other destructive or disruptive code, routines or programs.

14.3    Results Obtained from the Web Site, Materials, and Software. User understands and acknowledges that HIRES makes NO warrantee or guarantee, express or implied, that User will be financially successful or attain any financial goal or achieve any particular income level by using the Materials or the Web Site. Accordingly, User further understands and acknowledges that User uses the Web Site and the Materials at User’s own risk and that User, alone, is responsible for the results obtained through such use.

14.4    Damages Resulting from Use of the Web Site, Materials, and Software. In NO event, shall HIRES be liable for any direct, indirect, incidental or consequential damages, lost profits, or business interruption resulting from lost data, or the use or inability to use the Web Site, Materials, Subscription Materials, Software, functions made accessible by or accessed through the Web Site, products or services made available on or through any third party linked web sites, or any materials posted on or transmitted through the Web Site by third parties.

14.5    User Representation. User hereby represents and warrants to HIRES that User is at least eighteen (18) years old and that User possesses the legal capacity to enter into this Agreement and to adhere to the terms of this Agreement. In the event User is using a corporate Userid to access Subscription Materials, User further warrants and represents that User has the authority to legally bind the corporation, company, limited liability company, or partnership to which such corporate Userid was issued by HIRES, to the terms and conditions of this Agreement.

15.    Indemnity. User agrees to defend, indemnify, and hold harmless HIRES, HIRES's Affiliates, and HIRES and HIRES's Affiliates' officers, directors, employees and agents, from and against any claims, actions or demands, including, but not limited to, reasonable legal and accounting fees, arising or resulting from User's use of the Materials, Software, Web Site, Subscription materials, User's breach of this Agreement, or any actual or alleged act or omission of HIRES or its employers or agents regarding: i) any data or information transmitted by or through the Web Site; ii) any matter for which the Web Site has served as a transmitter of data or information of any kind; iii) any breach of this Agreement by HIRES; or, iv) HIRES’s violation of any law or the rights of a third party.

16.    Foreign Export of the Materials and software.

16.1    Compliance with Foreign Laws and Regulations. This Web Site is based in the United States of America. However, access to, and/or use of, the Materials and Software may be prohibited in certain countries. Accordingly, HIRES makes no claim or representation that the Materials or Software may be legally downloaded or used outside of the United States. If User accesses the Web Site from outside the United States, User does so at User's own risk and User is responsible for compliance with the laws of any and all jurisdiction(s) wherein such downloading and/or use occurred.

16.2    Export Controls. The United States government controls the export of products and information. User agrees to comply with any and all applicable restrictions and not to export or re-export the Materials or Software to such countries or persons as may be restricted by applicable export control laws. By downloading the Materials and/or Software, User represents and warrants that User is not in a country where such export is prohibited or is a person or Entity to which such export is prohibited. User is responsible for compliance with the laws of User's local jurisdiction regarding the import, export, or re-export of the Materials.

17.    Termination of the Agreement.

17.1    No Cause or Notice Required. In its sole discretion, HPI may terminate User’s Subscription, as well as User’s access to the Web Site, Materials, or Software, if, in HIRES’s judgment, continuation of such access or Subscription would in any way be inconsistent with the purposes or terms of this Agreement, and/or with the operation and/or functioning of the Web Site, Software, or Materials or software, systems, programming, practices, and procedures relating thereto. Notwithstanding anything to the contrary in this Agreement, HIRES is not required to give any notice prior to such termination.

17.2    Breach. In the event that User breaches this Agreement, User's permission to use the Materials, Web Site, and Software is automatically terminated, and User shall immediately destroy any and all copies, however such may be embodied, that User has made of the Materials and Software.

17.3    Fraud. Without limiting the availability of any other remedies available to HIRES, HIRES may suspend or terminate User’s Subscription and/or User’s access to the Materials, Web Site, and Software, if User is found, by conviction, settlement, insurance or escrow investigation, or otherwise, to have engaged in fraudulent activity in connection with the Web Site, Materials, or Software, or software, systems, programming, practices, and procedures relating thereto.

17.4    Failure to Pay Amounts Due and Owing. If User fails for any reason to pay, when due, any amount due and owing by User to HIRES, then HIRES, in its sole discretion, may immediately and without notice to User, suspend or terminate User’s access to the Materials, Web Site, and Software, and terminate User’s Subscription. Such action(s) by HIRES may remain in effect, at HIRES’s discretion, until User pays all amounts owed to HIRES pursuant to the terms of this Agreement. The foregoing is not intended to limit or foreclose, in any way, any other right or remedy HIRES may have at law or in equity.

18.    Miscellaneous.

18.1    Waiver. A waiver by either party of a breach of any term or condition of this Agreement shall not constitute a waiver of any further breach of a term or condition of this Agreement and no waiver shall be effective unless in writing signed by the party.

18.2    Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and negotiations that relate to the subject matter of this Agreement, whether oral or written, between the parties, except as expressly provided in a particular Legal Notice, Software License Agreement, or other material on a particular Web page of the Web Site. User acknowledges that no promise, representation, warranty, or covenant not included in this Agreement has been or is relied upon. User has relied upon User's own examination of the full Agreement and the provisions thereof, and the warranties, representations, and covenants expressly contained in the Agreement itself.

18.3    Applicable Law. This Agreement shall be construed in accordance with and its performance shall be governed by the laws of the State of Utah, notwithstanding the choice of law rules of such State. The courts of Utah shall have exclusive jurisdiction to determine all claims, disputes, actions, or suits that may arise hereunder and the parties expressly consent to such exclusive jurisdiction and venue before the proper authority in Utah.

18.4    Severability. If any one or more provisions of this Agreement shall be found to be illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

18.5    Singular and Plural Words, and Gender. Words in the singular shall include the plural and words in the plural shall include the singular. Words in any gender shall include the other gender.

18.6    Costs and Fees Upon Default. If either party defaults in the performance of its obligations under this Agreement, then the defaulting party agrees to pay reasonable costs and attorneys' fees to enforce this Agreement.

18.7    Assignment. This Agreement shall be binding upon and shall inure to the benefit of the heirs and personal representatives and/or the successors and assigns of the parties. Notwithstanding the immediately preceding sentence, User agrees not to assign, transfer or sublicense any portion of User's rights, duties, or obligations under this Agreement, and any such assignment, transfer, or license shall be void ab initio. However, HIRES shall have the right to assign this Agreement in whole or in part without the prior written consent of User. Finally, either party may assign this Agreement without the consent of the other where substantially all of such party’s assets are acquired through merger, acquisition or other business combination.

18.8    Notice. All notices under this Agreement shall be sent by either Registered, Certified, or Regular First Class Mail, postage prepaid, or by personal delivery, or by Federal Express or a similar courier or overnight service. Any such notice shall be deemed received four (4) business days after the date it is sent unless the sender receives confirmation of its earlier delivery. All notices shall be addressed to the Parties at such addresses as the Parties may designate in writing to each other.