This Hacienda Site Usage Agreement (the "Agreement") is a binding agreement made by and between the HACIENDA BUSINESS PARK OWNERS ASSOCIATION, a California non-profit corporation (the "Association"), and you (“User”) by accessing the Internet site located at www.hacienda.org, or any successor URL (the "Site").
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
2. Intellectual Property. The Site comprises intellectual property of the Association, and may also include intellectual property owned by third parties (the “Site Content”). Access to the Site or Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property, and User shall be liable for any violations thereof. The burden of proving that User’s use of Site Content does not violate any laws or third party rights rests solely with User. No User is permitted to upload, download, display, perform, transmit, or otherwise distribute any of the Site Content in violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights thereto.
3. Representations, Warranties and Acknowledgements of User. User hereby represents, warrants, acknowledges and agrees that:
(a) the Site Content shall be used for informational purposes only, and shall not be used for commercial purposes, gain or profit. Nothing herein, or any use thereof, shall be deemed a transfer of ownership or title of any portion of the Site Content, whether owned by Association or any third party, or any of the intellectual property rights therein. User shall abide by those restrictions on use of the Site Content, including, but not limited to, copyright restrictions contained in this Agreement and as may be further noticed by the Association;
(b) the Association shall determine, in the Association's sole discretion , which Site Content to include in each Account. The Association retains the right at any time, in the Association's sole discretion, and without prior notice, to terminate the Account and revoke or suspend all or partial access, and remove or limit access to certain documents or materials from the Account. Association does not warrant that access to the Site Content will be uninterrupted or error free, and User assumes the risk of any and all damage or loss from use of, or inability to use, the Site Content;
(c) the Association is making the Site and Service available "As-Is" and without warranty, statement, representation or claim of any kind, whether express or implied, including, but not limited to the accuracy, currency, reliability, intellectual property ownership and rights associated therewith, or completeness of the Site Content. All users are urged to independently verify the information provided; and
(d) if User is a certified representative of an Association property owner or principal contact for ownership ("Owner User"), and Owner User wishes to provide a third party ("Agent") access to Site Content for legitimate purposes related to such property, Owner User may create access to their account for such Agent as allowed by the Service. Owner User assumes all responsibility for the Agent. Owner User warrants that any Agent access will only be given for legitimate purposes related to the relevant property and the Owner User will be responsible for promptly deleting any Agent access which is no longer necessary to accomplish the legitimate purpose related to the property. Owner User hereby indemnifies the Association for any claim or demand against the Association arising out of or in any way connected with Agent access created by Owner User.
4. Waiver and Indemnification. User hereby waives any claim or demand against the Association arising out of or in any way connected with the Account, the Site Content and this Agreement. User agrees to indemnify, protect, defend (with legal counsel selected by Association) and hold harmless the Association, and the Association's directors, officers, shareholders, agents, attorneys, consultants, employees and affiliated personnel, from and against any and all losses, actions, obligations, claims, demands, liabilities, debts, costs, damages and/or expenses (including attorneys' fees, expert fees and costs), arising out of or in any way connected with the Account, the Site Content, this Agreement, and any infringement by User, of any intellectual property or other right of any person or entity. Association will notify User promptly of any such claim, loss, liability or demand, and will provide User with reasonable assistance, at User's sole cost and expense (including all attorneys' fees, expert fees and costs), in defending such claim, loss, liability, damage or cost.
5. Alleged Violations. Association reserves the right to terminate User’s use of the Service and/or the Site, or access to Site Content. To ensure that Association provides a high quality experience for the use of the Site and the Service, User agrees that Association or its representatives may access User’s account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Site or the Service. Association does not intend to disclose the existence or occurrence of such an investigation unless required by law, but Association reserves the right to terminate a User account or User access to the Site immediately, with or without notice to User, and without liability to User, if Association believes that User has violated any of the terms of this Agreement, furnished Association with false or misleading information, or interfered with use of the Site or the Service by others.
6. NO WARRANTIES. ASSOCIATION HEREBY DISCLAIMS ALL WARRANTIES. ASSOCIATION IS MAKING THE SITE AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND. USERS ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ASSOCIATION EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ASSOCIATION DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET USER’S REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITED LIABILITY. ASSOCIATION’S LIABILITY TO USER IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ASSOCIATION BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH USER’S USE OF THE SITE OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO USER BY ASSOCIATION. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action.
8. Prohibited Uses. Association imposes certain restrictions on User’s permissible use of the Site and the Service. Users are prohibited from violating or attempting to violate any security features of the Site or Service, including, without limitation, (a) accessing content or data not intended for the User, or logging onto a server or account that User is not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Site or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Association in providing the Site or Service. Any violation of system or network security may subject User to civil and/or criminal liability.
9. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to their rules regarding conflicts of law. Users hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in Alameda county, California, USA in all disputes arising out of or related to the use of the Site or Service.
10. Severability, Waiver. If, for whatever reason, a court of competent jurisdiction finds any term or condition in this Agreement to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
11. No License. Nothing contained on the Site should be understood as granting User a license to use any of the trademarks, service marks, or logos owned by Association or by any third party.
12. California Use Only. The Site is controlled and operated by Association from its offices in the State of California. Association makes no representation that any of the materials or the services to which Users have been given access are available or appropriate for use in other locations. Users use of or access to the Site should not be construed as Association’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
13. Modifications. Association may, in its sole discretion and without prior notice, (a) revise this Agreement; (b) modify the Site and/or the Service; and (c) discontinue the Site and/or Service at any time. Association shall post any revision to this Agreement to the Site, and the revision shall be effective immediately on such posting. Users agree to review this Agreement and other online policies posted on the Site periodically to be aware of any revisions. Users agree that, by continuing to use or access the Site following notice of any revision, Users shall abide by any such revision.