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Your Use Of Our Web Site
You may not reproduce, duplicate, copy, sell, or otherwise transfer or commercially exploit our Web site (or any portion of it), unless you have Five Star's express written permission to do so. You may only use our Web site in accordance with the terms of this User Agreement, any other terms applicable to the various features of our site and all applicable laws, rules and regulations. Five Star may, in its sole discretion and at any time, discontinue the Five Star Web site, or any part thereof, with or without notice. You agree that you do not have any rights in our Web site and that Five Star will have no liability to you if the Five Star Web site is discontinued or your ability to access our Web site is terminated.
Use of any part of our Web site or services is void where prohibited. By using our Web site or services, you represent and warrant that (a) all information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older; (d) you have the authority to enter into this User Agreement; and (e) your use of our Web site or services does not and will not violate any applicable law, regulation or agreement. If you are an individual and intend to use products or services purchased from Five Star in performing your duties on behalf of a company or organization (the "Primary Customer"), either as an employee or independent contractor and either directly for the Primary Customer or in providing services at the direction of the Primary Customer, this User Agreement is also between Five Star and the Primary Customer, and you hereby represent and warrant that you have the authority to enter into this User Agreement on the Primary Customer's behalf and agree that you are entering into this User Agreement on behalf of the Primary Customer as well as yourself and that both you and the Primary Customer are bound by the terms of this User Agreement (you and the Primary Customer being referred to herein individually and collectively as "you").
Restrictions on Use
You specifically agree not to do any of the following: (a) use our Web site or services to violate the legal rights (including the rights of publicity and privacy) of others or to violate the laws of any jurisdiction; (b) intercept or attempt to intercept electronic mail not intended for you; (c) misrepresent an affiliation with any person or organization; (d) restrict or inhibit use of our Web site or services by others; (e) upload or otherwise transmit files that contain a virus or corrupted data; (f) collect information about others (including online IDs, and e-mail addresses) without their consent; (g) download a file or software or include in a message any software, files or links that you know, or have reason to believe, cannot be distributed legally over our Web site or services, or that you have a contractual obligation to keep confidential (notwithstanding its availability on our Web site or services); or (h) engage in any other conduct that restricts or inhibits anyone's use or enjoyment of our Web site or Services, or which, as determined by Five Star, may harm Five Star or users of Five Star.com or expose them to liability. Further, you agree that you will not (i) use any robot, spider or other automatic device, process or means to access our Web site or services, (ii) use any manual process to monitor or copy any of the material on our Web site or services or for any other unauthorized purpose without the prior written consent of Five Star, (iii) use any device, software or routine that interferes with the proper working of our Web site or services, (iv) attempt to interfere with the proper working of our Web site or services, (v) take any action that imposes an unreasonable or disproportionately large load on Five Star's infrastructure, or (vi) access, reload or "refresh" transactional pages, or make any other request to transactional servers, more than once during any three (3) second interval.
Content Submitted or Posted
You are solely responsible for the information and other content that you (a) submit to Five Star, whether orally or in any other form, (b) publish or display (hereinafter, "post") on or through our Web site, or (c) transmit to other users (collectively, "User Content"). You will not submit to Five Star, post on or through our Web site or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not provide inaccurate, misleading or false information to Five Star, any Five Star service provider or any other user. If information provided to Five Star, a supplier, a service provider, or another user, subsequently becomes inaccurate, misleading or false, you will promptly notify Five Star of such change or make or post the appropriate changes yourself. By submitting User Content to Five Star or posting it to any area of our Web site, including without limitation, message boards, profiles, forums, and contests, you automatically grant to Five Star and its affiliates an irrevocable, royalty-free, perpetual, fully paid nonexclusive right (including moral rights) and worldwide license to use, copy, reproduce, modify, adapt, publish, translate, communicate to the public, perform, display, and distribute such User Content (in whole or in part) and to prepare derivative works of, or incorporate into other works (in any form, media or technology now known or later developed, for the full term of any rights that may exist in such content) such User Content, and to grant and authorize sublicenses thereof (through multiple tiers). You also represent and warrant that you have the right to grant or that the holder of any rights, including moral rights in such content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant, the license stated above. If you post User Content in any public area of our Web site, you also permit any user to access, display, view, store and reproduce such User Content for personal use and any other use consistent with the use for which it was intended. Subject to the terms of this User Agreement, the owner of any User Content placed on our Web site retains any and all rights that may exist in such User Content.
Monitoring and Enforcement
Five Star acts as a passive conduit for the online distribution and publication of posted User Content and assumes no responsibility and has no obligation to screen or monitor User Content or any other user communications or information. However, Five Star reserves the right to review and remove any posted User Content that, in its sole judgment, violates this User Agreement, violates applicable laws, rules or regulations, is abusive, disruptive, offensive or illegal, or violates the rights of, or harms or threatens the safety of, Five Star.com users or is not consistent with the purpose of our Web site or services (including with respect to any material Five Star has been notified, or has reason to believe, constitutes a copyright infringement). Five Star also may expel users and prevent further access to our Web site and services for violating this User Agreement or applicable laws, rules or regulations or acting in any manner that is abusive, disruptive, offensive or illegal, violates the rights of, or harms or threatens the safety of, Five Star.com users or is not consistent with the purpose of our Web site or services. Five Star may take any action with respect to User Content that it deems necessary or appropriate in its sole discretion if it believes that such User Content could create liability for Five Star, damage Five Star's brand or public image, or cause Five Star to lose (in whole or in part) the services of its suppliers. Five Star can neither review all material before it is posted on our Web site or services, nor ensure prompt removal of objectionable material after it has been posted. Accordingly, Five Star assumes no liability for any action or inaction regarding transmissions, communications or content provided by third parties. Five Star reserves the right to take any action it deems necessary to protect the personal safety of users and the public; however, Five Star has no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph. Five Star does not represent or guarantee the truthfulness, accuracy, or reliability of User Content or any other communications posted or transmitted by users, suppliers or service providers or endorse any opinions expressed by users, suppliers or service providers. You acknowledge that any reliance on material posted by or information received from other users or any suppliers or service providers will be at your own risk. You are solely responsible for your interactions with other users. Five Star reserves the right, but not the obligation, to monitor disputes between you and other users.
You acknowledge and agree that:
a. YOUR USE OF THE Five Star WEB SITE IS AT YOUR OWN RISK AND IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. Five Star 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, TITLE, AND NON-INFRINGEMENT. Because our Web site is provided to you "AS IS," you agree that Five Star shall not be liable to you or to any third party for any delay in delivery of, or failure to deliver, any of your communications, or other information you submit using our Web site. Because our Web site is provide to you "AS AVAILABLE," you agree that Five Star shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Five Star Web site or of your ability to access it.
b. Five Star also disclaims any warranty that (i) our Web site will meet your requirements, (ii) our Web site's operation will be uninterrupted, timely, secure, or error-free, and (iii) any information or communication that may be obtained from the use of our Web site (including but not limited to, our retailers' pricing information) will be accurate or reliable (and Five Star disclaims any liability for damages that may arise from your reliance on any such information or communication).
c. You assume the full responsibility and risk for any damage to your computer or other consequences that result from your downloading any information, software, or other materials through our Web site. Five Star shall have no liability for any damage to your computer, including loss of data that results from your downloading any such materials.
Some states do not allow the disclaimer of implied warranties, so this provision may not apply to you.
Limitation of Liability
YOU AGREE THAT Five Star SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, SUCH AS DAMAGES FOR LOST PROFITS OR LOSS OF GOODWILL, USE, OR DATA (EVEN IF Five Star HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), THAT RESULT FROM: (a) YOUR USE OF OR INABILITY TO USE THE Five Star WEB SITE; (b) ACCESS TO OR ALTERATION OF YOUR PERSONALLY IDENTIFIABLE INFORMATION OR OTHER INFORMATION IN AN UNAUTHORIZED MATTER; (c) REPRESENTATIONS OR CONDUCT OF ANY THIRD PARTY RELATED TO THE Five Star WEB SITE; OR (d) ANY OTHER MATTER RELATING TO THE Five Star WEB SITE. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above limitations may not apply to you.
Five Star'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO Five Star FOR THE SERVICE, INFORMATION OR PRODUCT ON WHICH SUCH CAUSE OF ACTION IS BASED.
You agree to indemnify and hold harmless Five Star and its affiliates, third party information providers, suppliers, service providers, licensors, contractors and others involved in our Web site or the delivery of services or information over our Web site, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (a) your use of our Web site or services, or any information obtained therefrom, in violation of this User Agreement, (b) your breach of this User Agreement, (c) any breach of your representations and warranties set forth above and/or (d) any content that you post on or through our Web site or services.
Five Star Perfect Sleeper®, Perfect Day®, and all other Five Star slogans, logos, and product and service names used on this Web site are trademarks owned by Five Star. Except with respect to the creation of a link to our Web site in accordance with Five Star's Linking Terms, you agree not to display or use such trademarks, in any manner, without the written permission of Five Star. Names, brands and marks of third parties may be the trademarks or registered trademarks of their respective owners and are used by Five Star subject to license, or used for identification purposes only. Subject to the terms of this User Agreement, users on our Web site may post trademarks of third parties in connection with their sale of those products. Users are expressly forbidden to misuse those marks.
The content that Five Star provides on our Web site, including, but not limited to, text, graphics, images, and logos, are proprietary to either Five Star or the party that has provided the content to us and is protected by U.S. and international laws regarding copyrights, trademarks, trade secrets and other proprietary rights. Five Star is the sole and exclusive owner of its compilation of this content on our Web site, and this compilation is also protected by U.S. and international copyright laws. You are authorized to use the content only for legitimate purposes related to your role as a user. You may not copy, modify, create derivative works of, publicly display or perform, republish, store, transmit or distribute any of the material on our Web site or services without the prior written consent of Five Star, except to: (a) store copies of such materials temporarily in RAM, (b) store files that are automatically cached by your Web browser for display enhancement purposes, and (c) print a reasonable number of pages of our Web site; provided in each case that you do not alter or remove any copyright or other proprietary notices included in such materials. Unpermitted copying of any of this content could lead to copyright infringement. Neither the title nor any intellectual property rights to any information or material in our Web site or services are transferred to you, but remain with Five Star or the applicable owner of such content. Five Star expects you to respect its copyright rights, as well as the copyright rights of others.
You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Five Star to terminate the registration of any customer who repeatedly infringes the copyright rights of others upon receipt of proper notification to Five Star by the copyright owner(s) or the legal agent(s) of the copyright owner(s). If you believe that your copyrighted work or trademark has been uploaded, posted or copied to our Web site and is accessible in a way that constitutes copyright or trademark infringement, please provide our agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of where the material that you claim is infringing is located on our Web site; (4) your address, telephone number, and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
We have designated Ms. Kelly Rampson as our agent to receive notices of claims of copyright or trademark infringement or other nonconformance to this User Agreement. You can contact Ms. Rampson as follows:
Five Star International
2600 Forbs Avenue
Hoffman Estates, IL 60192
Attn: Trademark Management
You agree that this User Agreement describes the entire agreement between us with respect to its subject matter. The Five Star Web site was created and is operated under the laws of the State of Illinois. Five Star makes no representation that materials on our Web site are appropriate or available for use in other locations. If you access our Web site from other locations, you are responsible for complying with local laws. The laws of the State of Illinois will control the terms and conditions provided in this User Agreement, without giving effect to any principles of conflict of laws. You agree that exclusive jurisdiction over any cause of action arising out of this User Agreement or our Web site or services shall be in the State or Federal courts of the United States located in or near Chicago, Illinois. If a court of competent jurisdiction finds that any provision of this User Agreement is invalid or unenforceable, we both agree that the other provisions of this User Agreement will remain in full force and effect. You agree that regardless of any applicable law to the contrary, you cannot file a claim or cause of action arising out of or related to the Five Star Web site or this User Agreement more than one (1) year after such claim or cause of action arose. Five Star's failure to insist upon or enforce strict performance of any provision of this User Agreement will not constitute a waiver of that provision.