Terms of Use

Last Modification Date: June 9, 2009

Welcome to a web site (“Site”) owned and operated by HyNote Enterprise Solutions, LLC and/or its affiliated companies (“HyNote”). Through the Site, you have access to content, documents, materials, information, software, products, and services (collectively "Content") such as developer tools, software downloads, communication forums and product information. By using the Site, you agree to follow and be bound by the following terms and conditions concerning your access to and use of the Site and the Content provided on the Site ("Terms of Use") and our Privacy Policy. HyNote may revise the Terms of Use and Privacy Policy at any time without notice to you.

Some areas of the Site may have additional rules, guidelines, or terms of use posted. If there is a conflict between the Terms of Use and the rules, guidelines or terms of use posted for a specific area of the Site, the latter shall have precedence with respect to your use of that area of the Site.

1. Use of Web Site Documents & Intellectual Property
HyNote maintains, reserves, and is the sole owner of the HyNote Intellectual Property and all rights and goodwill related thereto. “HyNote Intellectual Property” shall include, without limitation: (i) any websites operated by HyNote, including epmcloud.com and hynote.com; (ii) any copyrighted works, trademarks, trade secrets, patented works, and any inventions (and any derivatives thereof or improvements thereto) of HyNote, and any trade names, logos, designs, trade dress and other brand designations used by HyNote; (iii) any software owned, operated, or created by HyNote, whether application software, operational software, or otherwise; (iv) any marketing materials, including, without limitation, any webinars, videos, advertisements, presentations, pamphlets, and portfolios; and (v) any other intellectual property and trade secrets of HyNote. You shall not disclose, reproduce, or otherwise use the HyNote Intellectual Property except as expressly provided in this Terms of Use without the written consent of HyNote.

You may download, view, copy and print documents, including graphics incorporated in the documents, that HyNote publishes on the Site ("Documents") such as white papers, press releases, datasheets and FAQs subject to the following: (a) the Documents may be used solely for personal, informational, non-commercial purposes; and (b) the Documents may not be modified or altered in any way. Except where your use constitutes "fair use" under copyright law, you may not otherwise use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit or distribute any Documents or other Content from the Site in whole or in part without the express authorization of HyNote.

2. Use of Software
Any software and accompanying documentation you download or access through the Site ("Software") is the copyrighted work of HyNote and/or a third party software provider. Use of the Software is subject to the terms of a software license agreement that accompanies or is included with the Software. Your use, reproduction, or redistribution of the Software is prohibited except as expressly provided for in the software license agreement. All rights, title, and interest not expressly granted are reserved. Except where expressly provided otherwise, all Software is provided on an "as is" basis, and HyNote 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.

3. Use of Forums and Public Communication
"Forum" means a discussion group, chat area, bulletin board, news group, blog, wiki, letter to HyNote, its webmaster or employees, e-mail function, or other service in connection with which you can upload, email, post, publish or otherwise transmit Content. You agree not to upload, email, post, publish, distribute or otherwise transmit through a Forum any Content that: (a) is false or misleading; (b) is defamatory; (c) is harassing or invades another's privacy, or promotes bigotry, racism, hatred or harm against any group or individual; (d) is obscene; (e) infringes another's rights, including but not limited to intellectual property rights; (f) constitutes unsolicited bulk e-mail, "junk mail," "spam" or chain letters; or (g) violates any applicable laws or regulations.

Forums shall be used in a noncommercial manner only. You shall not upload, email, post, publish, distribute or otherwise transmit any Content containing a solicitation of funds, promotion, advertising, solicitation for goods or services, or other commercial matter. You agree not to solicit other users of the Site to use or join or become members of any commercial online or offline service or other organization. Except where expressly authorized by HyNote, you agree not to collect or store personal data about other users.

By uploading, emailing, posting, publishing or otherwise transmitting Content to any Forum or submitting any Content to HyNote, you automatically grant (or warrant that the owner of such rights has expressly granted) HyNote a worldwide, perpetual, royalty-free, irrevocable, nonexclusive, fully sub-licensable right and license to use, reproduce, modify, adapt, publish, transmit and distribute such Content in any form, medium, or technology now known or later developed. In addition, you warrant that all so-called moral rights in the Content have been waived.

HyNote has no obligation to monitor Forums or participate in Forums. However, HyNote reserves the right to review Forum Content and remove any Content at its sole discretion.

4. Passwords and Security
Access to and use of password protected or secure areas of the Site is restricted to authorized users only. You may not share your password(s), account information, or access to the Site. You are responsible for maintaining the confidentiality of password(s) and account information, and you are responsible for all activities that occur under your password(s) or account(s) or as a result of your access to the Site. You agree to notify HyNote immediately of any unauthorized use of your password(s) or account(s).

5. No Unlawful or Prohibited Use
You agree not to use the Site for any purpose that is unlawful or prohibited by these Terms of Use or the rules, guidelines or terms of use posted for a specific area of the Site. You may not access or use the Site in any manner that could damage, disable, overburden, or impair any HyNote accounts, computer systems, or networks. You may not attempt to gain unauthorized access to any parts of the Site or any HyNote accounts, computer systems or networks. You may not interfere or attempt to interfere with the proper working of the Site or any HyNote accounts, computer systems or networks. You may not use any robot, spider, scraper, or other automated means to access the Site or any HyNote accounts, computer systems, or networks without HyNote's express written permission.

6. Termination of Use
You agree that HyNote may, in its sole discretion, at any time terminate your access to the Site, including Forums, and any account(s) you may have in connection with the Site. HyNote may monitor access to and activity on the Site.

7. Third Party Web Sites, Content, Products and Services
The Site provides links to Web sites and access to Content from third parties, including users, advertisers, affiliates, and sponsors of the Site. You agree that HyNote is not responsible for the availability of, and Content provided on, third party Web sites. You should refer to the policies posted by other Web sites regarding privacy and other topics before you use them. You agree that HyNote is not responsible for third party Content accessible through the Site, including opinions, advice, statements, and advertisements, and understand that you bear all risks associated with the use of such Content. If you choose to purchase any products or services from a third party, your relationship is directly with the third party. You agree that HyNote is not responsible for: (a) the quality of third party products or services; and (b) fulfilling any of the terms of your agreement with the seller, including delivery of products or services and warranty obligations related to purchased products or services. You agree that HyNote is not responsible for any loss or damage of any sort you may incur from dealing with any third party.

8. Disclaimer
EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE, THE SITE, AND ALL CONTENT, DOCUMENTS, MATERIALS, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON THE SITE, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. HYNOTE 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. HYNOTE MAKES NO WARRANTY THAT: (A) THE SITE WILL MEET YOUR REQUIREMENTS; (B) THE SITE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR ANY CONTENT, DOCUMENTS, MATERIALS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OFFERED THROUGH THE SITE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY CONTENT, DOCUMENTS, MATERIALS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS.

ANY CONTENT, DOCUMENTS, MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, OR SERVICES DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK. HYNOTE SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF CONTENT, DOCUMENTS, MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, OR SERVICES.

THE LIMITATIONS PROVIDED FOR IN THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN SOME JURISDICTIONS, LIMITATIONS OF LIABILITY ARE NOT PERMITTED. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

HYNOTE RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE SITE AT ANY TIME WITHOUT NOTICE.

9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL HYNOTE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR USE INCURRED BY YOU OR ANY THIRD PARTY (EVEN IF HYNOTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER IN CONTRACT, IN TORT, OR OTHERWISE OR FOR DEFENDING, INDEMNIFYING, OR HOLDING HARMLESS YOU, IN EXCESS OF THE TOTAL COMMISSIONS OR FEES PAID BY YOU TO HYNOTE PURSUANT TO THIS TERMS OF USE PURSUANT TO WHICH SUCH DAMAGES OR OBLIGATIONS HAVE ARISEN.

10. Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT THAT THEY ARE HELD TO BE LEGALLY INVALID, DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THESE TERMS OF USE, INCLUDING THOSE SET FORTH IN SECTIONS 8 AND 9, DO NOT APPLY.

11. Indemnity
You agree to defend, indemnify and hold harmless HyNote, its officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys' fees and costs, due to or arising out of your access to or use of the Site or Content on the Site, your uploading, emailing, posting, publishing or otherwise transmitting Content to any Forum or submitting any Content to HyNote, your violation of the Terms of Use or any additional rules, guidelines or terms of use posted for a specific area of the Site, or your violation of any rights of another.

12. Privacy Policy
HyNote is concerned about your privacy and has developed a policy to address privacy concerns. For more information, please see HyNote's Privacy Policy.

13. Children
Minors are not eligible to use the Site, and HyNote asks that they do not submit any personal information to us.

14. Specific Performance
You understand and acknowledge that the restrictions contained in sections 1 and 2 hereof are reasonably necessary to protect the legitimate business interests of HyNote and that violation would cause irreparable damage to HyNote and that HyNote will not have an adequate remedy at law for such breach. Therefore, your obligations under this Terms of Use will be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith. Additionally, you agree to waive the defense in any suit that HyNote has an adequate remedy at law and to interpose no opposition, legal or otherwise as to the propriety of specific performance as a remedy. Such remedies and all other remedies to which HyNote is entitled under this Terms of Use, however, shall be cumulative and not exclusive and shall be in addition to any other remedies that HyNote may have under this Terms of Use or at law, in equity, or otherwise.

15. Applicable Laws
All matters relating to this Terms of Use and your access to and use of the Site shall be governed by and construed in accordance with the laws of the State of North Carolina (without reference to the principles of conflicts of laws or any other principle that could result in the application of the laws of any other jurisdiction) and any disputes arising hereunder or thereunder shall be decided in the courts of the 26th Judicial District of North Carolina (or if brought in federal court, in the United States District Court for the Western District of North Carolina), and each you consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to you. This Terms of Use shall be deemed to have been made and entered into in the State of North Carolina and you shall be precluded from making any claim or statement to the contrary.

16. No Waiver
The waiver by either party of a breach or default by the other party of any of the provisions of this Terms of User shall not be construed as a waiver of any succeeding breach of the same or other provisions unless a waiver to such effect is in writing signed by the party against whom enforcement is sought; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power, or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

17. Severability
If any provision of this Terms of Use is held illegal, unenforceable, or in conflict with applicable law, such illegal, unenforceable or conflicting provision shall be deemed severed, and the validity of the remaining portions or provisions shall not be affected.

18. HyNote Affiliates and Members
If you have previously executed a HyNote Orchestra Partner Program Affiliate Agreement (“Affiliate Agreement”) with HyNote then this Terms of Use shall replace in its entirety your Affiliate Agreement and such Affiliate Agreement is of no further force or effect.

If you have previously executed a HyNote Orchestra Partner Program Member Agreement (A02) (“Member Agreement”) and the Member Agreement has not been terminated, then this Terms of Use shall be considered an Engagement Agreement (as defined by your Member Agreement). To the extent that any of the terms of this Terms of Use shall conflict with any of the terms of your Member Agreement then your Member Agreement shall govern any conflicting terms.

HyNote, BackStage, Conductor, Orchestra Partner Network and OnStage are registered trademarks of HyNote Enterprise Solutions, LLC and/or its affiliates. Other names appearing on the Site may be trademarks of their respective owners.

20. Contact Information
If you have any questions regarding these Terms of Use, please contact HyNote at webmaster@hynote.com. If you have any other questions, contact information is available at the Contact page on the Site.

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