The following agreement (this "Agreement"
or the "Terms of Service") describes the terms of access to
DiveNav, Inc. ("DiveNav") 's eDiving® and DiveComputerTraining®
services (the "DiveNav Services"). By using DiveNav Services you
agree to these Terms of Service. If you do not so agree, you should
decline this agreement, in which case you are prohibited from accessing
or using the Services. DiveNav may amend this Agreement at any time
in its sole discretion.
THE SERVICES AND CONTENT OF DIVENAV SERVICES
1.1 Basic description of the service: DiveNav Services an online service, including software and websites.
DiveNav Services is the online service
offered by DiveNav, including the software provided to you by DiveNav
(collectively, the "DiveNav Software") and the online environments
that support the service, including without limitation: the server computation,
software access, maps, 3D models, images, graphics, messaging,protocols
that simulate the eDiving® environment (the "Servers"),
the simulation of dive computers, online classes provided by DiveNav,
the software that is provided by DiveNav and installed on the local
computer or other device you use to access the Servers and thereby view
or otherwise access the eDiving® environment (the "Client"),
application program interfaces provided by DiveNav to you for use with
eDiving® (the "APIs"), and access to the websites
and services available from the domain and subdomains of http://ediving.us
and http://divecomputertraining.
1.2 Content available in the Service may be provided by users of the Service, rather than by DiveNav. DiveNav and other parties have rights in their respective content, which you agree to respect.
You acknowledge that: (i) by using the Service you may have access to graphics, maps, sound effects, music, video, audio, computer programs, animation, images, text and other creative output (collectively, "Content"), and (ii) Content may be provided under license by independent content providers, including contributions from other users of the Service (all such independent content providers, "Content Providers").
You acknowledge that DiveNav and other Content Providers have rights in their respective Content under copyright and other applicable laws and treaty provisions, and that except as described in this Agreement, such rights are not licensed or otherwise transferred by mere use of the Service. You accept full responsibility and liability for your use of any Content in violation of any such rights.
1.3 Service is subject to scheduled and unscheduled service interruptions. All aspects of the Service are subject to change or elimination at DiveNav's sole discretion.
DiveNav reserves the right to interrupt
the Service with or without prior notice for any reason or no reason.
You agree that DiveNav will not be liable for any interruption of the
Service, delay or failure to perform, and you understand that DiveNav
has the right at any time for any reason or no reason to change and/or
eliminate any aspect(s) of the Service as it sees fit in its sole discretion.
ACCOUNT REGISTRATION AND REQUIREMENTS
2.1 You must establish an account to use Service using true and accurate registration information.
You must establish an account with DiveNav
(your "Account") to use the Service, except for those portions
of the Websites to which DiveNav allows access without registration.
You agree to provide true, accurate, current and complete information
about yourself as prompted by the registration form ("Registration
Data") and maintain and promptly update the Registration Data to
keep it true, accurate, current and complete. You authorize DiveNav,
directly or through third parties, to make any inquiries we consider
necessary to validate your Registration Data. DiveNav reserves all rights
to vigorously pursue legal action against all persons who misrepresent
personal information or are otherwise untruthful about their identity,
and to suspend or cancel Accounts registered with inaccurate or incomplete
information. Notwithstanding the foregoing, you acknowledge that DiveNav
cannot guarantee the accuracy of any information submitted by any user
of the Service, nor any identity information about any user.
2.2 You need to use an account name in Service which is not misleading, offensive or infringing. You must select and keep secure your account password.
You must choose an account name to identify yourself to DiveNav staff (your "Account Name"). You may not select as your Account Name the name of another person to the extent that could cause deception or confusion; a name which violates any trademark right, copyright, or other proprietary right; a name which may mislead other users to believe you to be an employee of DiveNav; or a name which DiveNav deems in its discretion to be vulgar or otherwise offensive. DiveNav reserves the right to delete or change any Account Name for any reason or no reason. You are fully responsible for all activities conducted through your Account or under your Account Name.
At the time your Account is opened, you
must select a password. You are responsible for maintaining the confidentiality
of your password and are responsible for any harm resulting from your
disclosure, or authorizing the disclosure of, your password or from
use by any person of your password to gain access to your Account or
Account Name. At no time should you respond to an online request for
a password other than in connection with the log-on process to the Service.
Your disclosure of your password to any other person is entirely at
your own risk.
2.3 DiveNav may suspend or terminate your account at any time, without refund or obligation to you.
DiveNav has the right at any time for
any reason or no reason to suspend or terminate your Account, terminate
this Agreement, and/or refuse any and all current or future use of the
Service without notice or liability to you. In the event that DiveNav
suspends or terminates your Account or this Agreement, you understand
and agree that you shall receive no refund or exchange for any unused
time on a subscription, any license or subscription fees, any content
or data associated with your Account, or for anything else.
2.4 You are responsible for your own Internet access.
DiveNav does not provide Internet access,
and you are responsible for all fees associated with your Internet connection.
LICENSE TERMS AND OTHER INTELLECTUAL PROPERTY TERMS
3.1 You have a nonexclusive, limited, revocable license to use Service while you are in compliance with the terms of service.
Subject to the terms of this Agreement, DiveNav grants to you a non-exclusive, limited, fully revocable license to use the DiveNav Software and the rest of the Service during the time you are in full compliance with the Terms of Service. Nothing in this Agreement, or on DiveNav's websites, shall be construed as granting you any other rights or privileges of any kind with respect to the Service or to any Content. You acknowledge that your participation in the Service does not make you a DiveNav employee and that you do not expect to be, and will not be, compensated by DiveNav for such activities.
3.2 OTHER PARTIES LICENSE
DIVENAV SOFTWARE INCORPORATES Lua 5.0 SOFTWARE Copyright © 1994-2008 Lua.org, PUC-Rio.
Permission is hereby granted, free of charge, to any person obtaining a copy of the LUA software and associated documentation files (the "LUA"), to deal in the LUA without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the LUA, and to permit persons to whom the LUS is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the LUA.
THE LUA IS PROVIDED "AS IS",
WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT
HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER
IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR
IN CONNECTION WITH THE LUA OR THE USE OR OTHER DEALINGS IN THE LUA.
CONDUCT BY USERS OF SERVICE
4.1 You agree to abide by certain rules of conduct prohibiting illegal and other practices that DiveNav deems harmful.
You agree that you shall not: (i) take
any action or upload, post, e-mail or otherwise transmit Content that
infringes or violates any third party rights; (ii) impersonate any person
or entity without their consent, including, but not limited to, a DiveNav
employee, or falsely state or otherwise misrepresent your affiliation
with a person or entity; (iii) take any action or upload, post, e-mail
or otherwise transmit Content that violates any law or regulation; (iv)
take any action or upload, post, e-mail or otherwise transmit Content
as determined by DiveNav at its sole discretion that is harmful, threatening,
abusive, harassing, causes tort, defamatory, vulgar, obscene, libelous,
invasive of another's privacy, hateful, or racially, ethnically or otherwise
objectionable; (v) take any actions or upload, post, e-mail or otherwise
transmit Content that contains any viruses, Trojan horses, worms, spyware,
time bombs, cancelbots or other computer programming routines that are
intended to damage, detrimentally interfere with, surreptitiously intercept
or expropriate any system, data or personal information; (vi) take any
action or upload, post, email or otherwise transmit any Content that
would violate any right or duty under any law or under contractual or
fiduciary relationships (such as inside information, proprietary and
confidential information learned or disclosed as part of employment
relationships or under nondisclosure agreements); (vii) upload, post,
email or otherwise transmit any unsolicited or unauthorized advertising,
or promotional materials, that are in the nature of "junk mail,"
"spam," "chain letters," "pyramid schemes,"
or any other form of solicitation that DiveNav considers in its sole
discretion to be of such nature; (viii) interfere with or disrupt the
Service or servers or networks connected to the Service, or disobey
any requirements, procedures, policies or regulations of networks connected
to the Service; (ix) attempt to gain access to any other user's Account
or password; or (x) "stalk", abuse or attempt to abuse, or
otherwise harass another user. Any violation by you of the terms of
the foregoing sentence may result in immediate and permanent suspension
or cancellation of your Account. You agree that DiveNav may take whatever
steps it deems necessary to abridge, or prevent behavior of any sort
on the Service in its sole discretion, without notice to you.
4.2 You agree to use Service as provided, without unauthorized software or other means of access or use. You will not make unauthorized works from or conduct unauthorized distribution of the DiveNav Software.
DiveNav has designed the Service to be
experienced only as offered by DiveNav at the Websites or partner websites.
DiveNav is not responsible for any aspect of the Service that is accessed
or experienced using software or other means that are not provided by
DiveNav. You agree not to create or provide any server emulators or
other software or other means that provide access to or use of the Servers
without the express written authorization of DiveNav. DiveNav is not
obligated to allow access to the Servers by any software that is not
provided by DiveNav, and you agree to cease using, creating, distributing
or providing any such software at the request of DiveNav. You are prohibited
from taking any action that imposes an unreasonable or disproportionately
large load on DiveNav's infrastructure.
You may not charge any third party for
using the DiveNav Software to access and/or use the Service, and you
may not modify, adapt, reverse engineer (except as otherwise permitted
by applicable law), decompile or attempt to discover the source code
of the DiveNav Software, or create any derivative works of the DiveNav
Software or the Service, or otherwise use the DiveNav Software except
as expressly provided in this Agreement. You may not copy or distribute
any of the written materials associated with the Service. Notwithstanding
the foregoing, you may copy the Client that DiveNav provides to you,
for backup purposes.
4.3 You will not use the marks of DiveNav without authorization from DiveNav.
You are not permitted to use the marks
" eDiving® ", " DiveComputerTraining®
", "DiveNav", or any other trade, service or other marks
registered to or owned by DiveNav, except as explicitly authorized by
DiveNav.
4.4 You will not use Service to develop personal and / or commercial videos. You agree that any such video created by You using the Service will be considered property of DiveNav.
RELEASES, DISCLAIMERS OF WARRANTY, LIMITATION
OF LIABILITY, AND INDEMNIFICATION
5.1 You release DiveNav from your claims relating to your use of Service DiveNav has the right but not the obligation to resolve disputes between users of eDiving®. Scuba diving, like many other active sports, has inherent risks which might lead to injury or, in extreme cases, even to death. DiveNav Software while attempting to accurately represent a real diving environment, should not be used as the sole source of reference nor should replace the real life training provided by accredited instructors and diving professionals.
In consideration of being allowed to
use the Service, you agree to engage in real diving activities that
are consistent with your training and experience. You further agree
that neither DiveNav, inc., nor its affiliates, nor any of its shareholders,
partners, directors, employees, officers, agents, contractors or assigns
(the "Released Parties") may be liable or responsible in any way
for any death, injury or other damages caused to you, your family, heirs,
estate or assigns that may occur as a result of you using the Service.
You further release, exempt and hold harmless said Released Parties
from any claim or lawsuit by you, your family, estate, heirs or assigns
arising from your use of the Service.
5.2 All data on DiveNav's servers are subject to deletion, alteration or transfer.
When using the Service, you may accumulate Content, objects, items, scripts, equipment, or other value or status indicators that reside as data on DiveNav's servers. THESE DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON DIVENAV'S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN DIVENAV'S SOLE DISCRETION.
YOU UNDERSTAND AND AGREE THAT DIVENAV
HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT IN WHOLE
OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT
NOTICE AND WITH NO LIABILITY OF ANY KIND.
5.3 DiveNav provides the Service on an "as is" basis, without express or implied warranties.
DIVENAV PROVIDES THE SERVICE, THE DIVENAV SOFTWARE, YOUR ACCOUNT AND ALL OTHER SERVICES STRICTLY ON AN "AS IS" BASIS, PROVIDED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Without limiting the foregoing, DiveNav
does not ensure continuous, error-free, secure or virus-free operation
of the Service, the DiveNav Software or your Account, and you understand
that you shall not be entitled to refunds for fees based on DiveNav's
failure to provide any of the foregoing other than as explicitly provided
in this Agreement.
5.4 DiveNav's liability to you is expressly limited, to the extent allowable under applicable law.
IN NO EVENT SHALL DIVENAV OR ANY OF ITS
SHAREHOLDERS, PARTNERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES,
EMPLOYEES, AGENTS, SUPPLIERS, LICENSEES OR DISTRIBUTORS BE LIABLE TO
YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES
FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY
OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE (INCLUDING ITS
MODIFICATION OR TERMINATION), THE DIVENAV SOFTWARE, YOUR ACCOUNT (INCLUDING
ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT DIVENAV
MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION,
IN NO EVENT WILL DIVENAV'S CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES
OF ANY KIND OR NATURE EXCEED TWENTY DOLLARS (U.S. $20.00). You agree
that DiveNav cannot be held responsible or liable for anything that
occurs or results from accessing, using or subscribing to the Service.
5.5 You will indemnify DiveNav from claims arising from breach of this Agreement by you, from your use of Service from loss of Content due to your actions, or from alleged infringement by you.
At DiveNav's request, you agree to defend,
indemnify and hold harmless DiveNav, its shareholders, partners, affiliates,
directors, officers, subsidiaries, employees, agents, suppliers, licensees,
distributors, and other users of the Service, from all damages, liabilities,
claims and expenses, including without limitation attorneys' fees and
costs, arising from any breach of this Agreement by you, or from your
use of the Service. You agree to defend, indemnify and hold harmless
DiveNav, its shareholders, partners, affiliates, directors, officers,
subsidiaries, employees, agents, suppliers, licensees, and distributors,
from all damages, liabilities, claims and expenses, including without
limitation attorneys' fees and costs, arising from: (a) any action or
inaction by you in connection with the deletion, alteration, transfer
or other loss of Content, status or other data held in connection with
your Account, and (b) any claims by third parties that your activity
or Content in the Service infringes upon, violates or misappropriates
any of their intellectual property or proprietary rights.
PRIVACY POLICY
6.1 DiveNav uses your personal information to operate and improve Service and will not give your personal information to third parties except to operate, improve and protect the Service.
The personal information you provide
to us during registration is used for DiveNav's internal purposes only.
DiveNav uses the information it collects to learn what you like and
to improve the Service. DiveNav will not give any of your personal information
to any third party without your express approval except: as reasonably
necessary to fulfill your service request, to third- party fulfillment
houses, customer support, billing and credit verification services,
and the like; to comply with tax and other applicable law; as otherwise
expressly permitted by this Agreement or as otherwise authorized by
you; to law enforcement or other appropriate third parties in connection
with criminal investigations and other investigations of fraud; or as
otherwise necessary to protect DiveNav, its agents and other users of
the Service. DiveNav does not guarantee the security of any of your
private transmissions against unauthorized or unlawful interception
or access by third parties. DiveNav can (and you authorize DiveNav to)
disclose any information about you to private entities, law enforcement
agencies or government officials, as DiveNav, in its sole discretion,
believes necessary or appropriate to investigate or resolve possible
problems or inquiries, or as otherwise required by law. If you request
any technical support, you consent to DiveNav's remote accessing and
review of the computer onto which you load DiveNav Software for purposes
of support and debugging. You agree that DiveNav may communicate with
you via email and any similar technology for any purpose relating to
the Service, the DiveNav Software and any services or software which
may in the future be provided by DiveNav or on DiveNav's behalf.
6.2 DiveNav may observe and record your
interaction within the Service, and may share aggregated and other general
information (not including your personal information) with third parties.
You acknowledge and agree that DiveNav,
in its sole discretion, may track, record, observe or follow any and
all of your interactions within the Service. DiveNav may share general,
demographic, or aggregated information with third parties about our
user base and Service usage, but that information will not include or
be linked to any personal information without your consent.
DISPUTE RESOLUTION
If a dispute arises between you and DiveNav,
our goal is to provide you with a neutral and cost-effective means of
resolving the dispute quickly. Accordingly, you and DiveNav agree to
resolve any claim or controversy at law or in equity that arises from
or relates to this Agreement or our Service (a "Claim") in
accordance with one of the subsections below.
7.1 Governing Law. This Agreement and the relationship between you and DiveNav shall be governed in all respects by the laws of the State of California without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods.
7.2 Forum for Disputes. You and DiveNav agree to submit to the exclusive jurisdiction and venue of the courts located in the County of Orange, California. Notwithstanding this, you agree that DiveNav shall still be allowed to apply for injunctive or other equitable relief in any court of competent jurisdiction.
7.3 Improperly Filed Claims. All Claims
you bring against DiveNav must be resolved in accordance with this Dispute
Resolution Section. All Claims filed or brought contrary to this Dispute
Resolution Section shall be considered improperly filed. Should you
file a Claim contrary to this Dispute Resolution Section, DiveNav may
recover attorneys' fees and costs up to one thousand U.S. Dollars ($1,000.00
USD), provided that DiveNav has notified you in writing of the improperly
filed Claim, and you have failed to promptly withdraw the Claim.
GENERAL PROVISIONS
The Service is controlled and operated by DiveNav from its offices within the State of California, United States of America. DiveNav makes no representation that any aspect of the Service is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Service from other locations are responsible for compliance with applicable local laws. The DiveNav Software is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the DiveNav Software and its use.
DiveNav's failure to act with respect to a breach by you or others does not waive DiveNav's right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by DiveNav under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of DiveNav. All or any of DiveNav's rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the Service in a merger, acquisition or sale of all or substantially all of DiveNav's assets. You may not assign or transfer this Agreement or any or all of your rights hereunder without the prior written consent of DiveNav, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of DiveNav shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of DiveNav.
This Agreement sets forth the entire understanding and agreement between you and DiveNav with respect to the subject matter hereof. The section headings used herein, including descriptive summary sentences at the start of each section, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
DiveNav may give notice to you by means
of a general notice on our websites at http://ediving.us, http://divenav.com, http://divecomputertraining.
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