The websites located at https://mooncatrescue.com/ and https://mooncat.community/, as well as all related publication, product, or service, including all text, graphics, images, materials, opinions, suggestions, ideas, concepts, designs, data, software, sound files, information, marks, and copyrights, whether registered or unregistered, ("Publications"), as well as all rights in and to the MoonCat images ("MoonCats"), are the exclusive property of ponderware LC. By using the Site or Publications you expressly agree to all of the following terms and conditions ("Terms & Conditions). Ponderware hereby provides you only with a license to use the Content pursuant to the terms of this Agreement, and you agree that the Content is not sold to you or transferred to you in any other manner.
By accessing the Content, you affirm that (i) you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live) OR you have reviewed this Agreement with your parent or guardian and he or she has agreed to this Agreement on your behalf and takes full responsibility for your compliance with this Agreement AND (ii) you are a legal resident of a country where your access to and use of the Content is permitted. You represent that you are fully able and competent to enter into this Agreement and to agree to abide by and comply with this Agreement AND (iii) that the foregoing was true at all times during your use of the Content, even if your use began prior to the effective date of this Agreement.
Ponderware reserves the right to modify this Agreement at any time by posting a notice of such modifications in the relevant section of the Site, or by posting a notice in any other conspicuous manner that Ponderware deems sufficient. Your continued use of the Content will signify your acceptance of the changes to this Agreement. EACH TIME YOU ACCESS OR USE THE CONTENT, YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THIS AGREEMENT (INCLUDING ANY AMENDMENTS OR UPDATES TO THIS AGREEMENT THAT MAY HAVE BEEN MADE FROM TIME TO TIME).
NOTICE: THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND PONDERWARE SHALL BE SUBMITTED TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS.
IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT PERMITTED TO CONTINUE TO ACCESS THE CONTENT AND YOUR EXCLUSIVE REMEDY IS TO CEASE ACCESSING THE CONTENT.
"Agreement" means these Terms & Conditions.
"Content" means the Site, any information provided and hosted on the Site including on its blog, discussion board, or newsletter, and all new versions, updates, revisions, improvements, and modifications of the foregoing, to which Ponderware provides remote access and use.
"Device or Devices" means any computer, tablet, mobile device, or other device used to access the Content running iOS, Android, or other compatible mobile device operating system.
"Documentation" means any manuals, instructions, or other documents or materials that Ponderware provides or makes available to you in any form or medium and which describe the functionality, components, features, or requirements of the Content or Ponderware Materials, including any aspect of the configuration, integration, operation, use, support or maintenance thereof.
"Harmful Code" means any application, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, application, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent you from accessing or using the Content or Ponderware Systems as intended by this Agreement.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or held by any party in the respective content, materials, or otherwise, whether now or hereafter in existence, under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, non-profit organization, unincorporated organization, trust, association or other entity.
"Ponderware" means ponderware, LC, a Wyoming Limited Liability Company, and all parent companies, subsidiaries, affiliates, officers, directors, owners, members, employees, agents, contractors, subcontractors, licensees, licensors, and resellers of ponderware, LC.
"Ponderware Materials" means the Content and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, applications, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Ponderware in connection with the Content or otherwise comprise or relate to the Content or Ponderware Systems. Ponderware Materials include resultant data and any information, data, or other content derived from Ponderware's monitoring of your access to or use of the Content, but does not include Your Data.
"Ponderware Personnel" means all individuals involved in the provision of Content as employees, agents, or independent contractors of Ponderware.
"Ponderware Systems" means the information technology infrastructure used by or on behalf of Ponderware in performing the Content, including all computers, applications, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Ponderware or through the use of third-party services.
"Site" means the website hosted by Ponderware at https://mooncatrescue.com/ and https://mooncat.community/, and all related subdomains.
"Third Party IP" means any third party intellectual property rights, including, without limitation, patent applications and disclosures, copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
"Third-Party Services" means any other website, payment processing services, product, goods, services, application, software, service, social networking, blogging, etc. linked in the Content that is owned and operated by any Person other than Ponderware.
"Your Data" means any and all information, including but not limited to, contact information, documents, video, information, etc. that you may lawfully input into the Content or Ponderware Systems, or that you otherwise provide to Ponderware during your use of the Content pursuant to this Agreement.
2.1. Website License. Subject to and conditioned on your compliance with all the terms and conditions of this Agreement, Ponderware hereby grants and you accept a revocable, non-exclusive, non-transferable, limited license to access the Site and Content on your Device for the sole purpose of consuming the Content on such Device. Your license is limited to use solely in your personal, non-commercial capacity.
You agree that you will not distribute or provide any other individual with access to the Content, except to direct them to use the Content for their own use. Any commercial use is strictly prohibited. You may not make a copy of the Content available on a network where the Content could be downloaded, accessed, or used by other users.
2.2. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Content or Ponderware Materials, whether expressly, by implication, estoppel or otherwise. All right, title, and interest in and to the Content and Ponderware Materials are and will remain with Ponderware.
2.3. Non-Assignment. You may not, and in no way does this Agreement confer any right in you to license, sublicense, sell, or otherwise authorize the use of the Content, whether in executable form, source code or otherwise, by any third parties.
2.4. License Term. This License is effective on your initial use of the Content and contemporaneous acceptance of this Agreement, and shall remain effective until terminated. This Agreement will terminate immediately and without notice to you on your violation or breach of this Agreement.
2.5. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
2.5.1. All rights, licenses, consents and authorizations granted by Ponderware to you hereunder will immediately terminate.
2.5.2. You shall cease all use of Content.
2.5.3. Ponderware may disable and deactivate any accounts you set up on the Content, and may otherwise prevent You from further accessing the Content.
2.5.4. Notwithstanding anything to the contrary in this Agreement, unless otherwise prohibited by law, with respect to information and materials then in its possession or control: Ponderware may retain Your Data until such time as Your Data is deleted in Ponderware’s ordinary course of business.
2.5.5. You will not be refunded any fees paid in connection with the Content.
3.1. Availability. While Ponderware will generally attempt to provide you with reasonable access to the Content, Ponderware is not responsible for any inability to access or use the Content, including in cases such as:
3.1.1. scheduled downtime;
3.1.2. Content downtime or degradation due to a force majeure event;
3.1.3. any other circumstances beyond Ponderware's reasonable control, including your use of Third-Party Materials, misuse of the hosted Content, or use of the Content other than in compliance with the express terms of this Agreement and the specifications; and
3.1.4. any suspension or termination of your access to or use of the hosted Content as permitted by this Agreement.
3.2. Changes. Ponderware reserves the right, in its sole and absolute discretion, to make any changes to the Content that it deems appropriate, necessary, or useful.
3.3. Suspension or Termination of Content. Ponderware may, directly or indirectly, and by any lawful means, suspend, terminate or otherwise deny your access to or use of all or any part of the Content or Ponderware Materials, in its sole discretion, for your violation of the terms of this Agreement or otherwise, including but not limited to violation of any other rules or requirements for continued use of the Content provided to you by Ponderware.
3.4. Your Devices. You agree that you will, at all times: (a) set up, maintain and operate in good repair all your Devices or systems on or through which the Content is accessed or used; (b) provide all cooperation and assistance as Ponderware may reasonably request to enable Ponderware to exercise its rights and perform its obligations under this Agreement.
3.5. Effect of Your Failure or Delay. Ponderware is not responsible for, and you shall not be entitled to damages or compensation for, any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of its obligations under this Agreement.
3.6. Limitations and Restrictions. Your right to use the Content is limited to the license granted in Section 2.1, and you may not otherwise use, or permit any other Person to access or use, the Content or Ponderware Materials except as expressly permitted. For purposes of clarity and without limiting the generality of the foregoing, you may not:
3.6.1. copy, modify, edit, adapt, improve, enhance, translate, or create derivative works of the Content or Ponderware Materials;
3.6.2. rent, lease, sublicense, loan, lend, sell, sublicense, assign, distribute, publicly display or perform, publish, transfer or otherwise make available the Content or Ponderware Materials to any other Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
3.6.3. reverse engineer, disassemble, decompile, decode, decrypt, or otherwise attempt to derive or gain access to the source code of the Content or Ponderware Materials, in whole or in part;
3.6.4. bypass or breach any security device or protection used by the Content or Ponderware Materials or access or use the Content or Ponderware Materials other than by through the uses allowed in this Agreement;
3.6.5. input, upload, transmit or otherwise provide to or through the Content or Ponderware Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
3.6.6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Interview Path Content, Ponderware Systems or Ponderware’s provision of services to any third party, in whole or in part;
3.6.7. remove, delete, alter or obscure any trademarks, specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Content or Ponderware Materials, including any copy thereof;
3.6.8. access or use the Content or Ponderware Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Rights or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Person), or that violates any applicable law;
3.6.9. otherwise access or use the Content or Ponderware Materials beyond the scope of the authorization granted herein; or
3.6.10. attempt to perform any of the prohibited actions listed in this paragraph 3.7.
3.7. Ponderware Control and Responsibility. Ponderware has and will retain sole control over the operation, provision, maintenance and management of the Content and Ponderware Materials, including the: (i) selection, deployment, modification and replacement of Content and (ii) performance of support services and Content maintenance, upgrades, corrections, and repairs.
3.8. Your Control and Responsibility. You agree that you have and will retain sole responsibility for: (a) all Your Data, including its content and use; (c) your Devices; (d) the security and use of your Devices; (e) access to and use of the Content and Ponderware Materials directly or indirectly by or through your Devices, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use; and (f) any and all other aspects of the operation, maintenance, and management of, and all access to and use of, your Devices, and all access to and use of the Content and Ponderware Materials by any Person by or through your Devices or any other means controlled by you.
3.9. Other Purpose. You agree not to use Content for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not intended, including but not limited to, using the Content to create a website, product, service, or application that is directly or indirectly competitive with or in any way a substitute for any website, product, service, or application offered by Ponderware.
3.10. Warranty Effects. In the event you, or any other party related to or in conjunction with you, use or make any modification to the Content in any manner that is not authorized by this Agreement, any and all express or implied warranties (if any) provided by Ponderware and not otherwise disclaimed below, shall be deemed null and void.
4.1. Title. All right, title, and interest in and to the Content and Ponderware Materials, including any and all Intellectual Property Rights therein, and including all enhancements, modifications, and updates to any of these, belong to and will remain with Ponderware, or the respective rights holders in any Third-Party Materials. You have no other right, license, or authorization related to any of the Content or Ponderware Materials (including Third-Party Materials) except as expressly set forth herein. All other rights in and to the Content and Ponderware Materials (including Third-Party Materials) are expressly reserved by Ponderware and the respective third-party licensors.
4.4. Survival. To the extent necessary for continued operation of Ponderware’s business and in accordance with Ponderware’s internal data retention policies and applicable laws, any licenses granted to Ponderware with respect to Your Data shall survive expiration or termination of this Agreement.
5.1. Disclaimer of Warranties. To the fullest extent permitted by applicable law, and unless otherwise specified, Ponderware makes no representations, warranties, or guarantees to you regarding the Content or Ponderware Materials, including but not limited to the quality, functionality, availability, accessibility, or performance of the Content or Ponderware Materials. Both the Content and Ponderware Materials are provided "as is", "with all faults", and "as available" and Ponderware hereby disclaims all warranties, whether express, implied, statutory or other, and Ponderware specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice. Without limiting the foregoing, Ponderware makes no warranty of any kind that the Content or Ponderware Materials, or any products or results of the use thereof, will meet your or any other Person's requirements, operate without interruption, achieve any intended result, be compatible or work with any application, system, or other services or be secure, accurate, complete, free of Harmful Code or error free.
5.2. Your Representations. You represent, warrant, and covenant to Ponderware that you own or otherwise have and will have the necessary rights and consents in and relating to Your Data so that, as received by Ponderware and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of Ponderware or any third party, or any privacy or other rights of any third party or violate any applicable law.
6.1. Breach of License. If you exceed the scope of any license granted under this Agreement without obtaining the prior written approval of Ponderware, you acknowledge and agree that: (i) you are in breach of this Agreement; (ii) in addition to any remedies that may be available to Creator at law or in equity, Ponderware may immediately terminate your License, without the requirement of notice; and (iii) you will be responsible to reimburse Ponderware for any costs and expenses incurred by Ponderware during the course of enforcing the terms of this Agreement against you.
6.2. Limitation of Liability. You agree that your sole and exclusive remedy for any dispute with Ponderware is to stop your use of or access of the Content. Under no circumstances shall Ponderware or its owner(s), employees, or agents be liable for any indirect, incidental, consequential, special, or exemplary damages arising out of or in connection with your access or use or inability to access or use the Content or Ponderware Materials. Such prohibited damages include, but are not limited to, lost profits, data loss, business damage, or damages that are not reasonably foreseeable. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or other specific types of damages. To the extent you reside in any such jurisdictions, this paragraph will not apply to you.
6.4. Indemnification by You. You agree to indemnify and hold harmless Ponderware from and against all liability, damages, loss, cost or expense, including but not limited to reasonable attorneys’ fees and expenses, arising out of or in connection with any claims that (i) your use or access of the Content infringes or otherwise violates any rights of any such third party, (ii) your use or access of the Content in contravention of this Agreement, including but not limited to the prohibitions in Section 3, (iii) your provision of, or Ponderware’s use of Your Data has caused damage to, infringed the rights of, or caused the dissemination or unauthorized access of the data of, any third party, and/or (iv) your provision of, or Ponderware’s use of Your Data caused damage to a third party including but not limited to as a result of Harmful Code, whether negligent or intentional.
6.5. Indemnification Notice and Consent. Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such a claim and shall give the indemnitor reasonable opportunity to defend and to settle the claim at its own expense and with counsel of its own selection. The indemnitee shall cooperate with the indemnitor, shall at all times have the right to fully participate in such a defense at its own expense and shall not be obligated, against its consent, to participate in any settlement which it reasonably believes would have an adverse effect on its business.
6.6. Pre-Arbitration Resolution. For all disputes under or related this Agreement, you must first give Ponderware an opportunity to resolve the dispute by sending written notice to Ponderware consistent with the notice requirements in Section 8 below. Such notice must include (1) your name, (2) your address, (3) a written description of your dispute, and (4) a description of the specific relief you seek. If you and Ponderware do not resolve the dispute within 45 days after receipt of your written notification, only then may you pursue your dispute in arbitration.
6.7. Arbitration. You agree that any and all disputes arising from or related to this Agreement or your use or access of the Content must be submitted to binding arbitration under the rules of the American Arbitration Association ("AAA") in the County of Sheridan, State of Wyoming, rather than in court or any other proceeding. Judgment upon the award rendered by the arbitrator may be entered in any court with jurisdiction to do so.
6.8. Arbitration Procedures. Arbitration shall be submitted as individual arbitration. In no case may arbitration be commenced as class arbitration. Arbitration shall be submitted to a single arbitrator and governed by the AAA’s Commercial Arbitration Rules. The arbitrator shall be selected in accordance with those rules. The party who desires to commence arbitration and thus must submit a demand for arbitration to the AAA shall be responsible for paying the arbitration filing fee. Once arbitration has begun, the parties shall share equally the cost of the arbitrator. Unless otherwise ordered by the arbitrator, each party shall be responsible for all other respective fees and costs, including but not limited to fees for attorneys or expert witnesses. You agree that you and Ponderware shall be entitled to injunctive relief, specific performance, and equitable remedies as well as any other relief allowed by arbitration under any applicable law.
6.9. Class Action Waiver. Any dispute initiated under or related to this Agreement will be conducted only on an individual basis and not in a class, collective, consolidated, or representative action or as a member of a class, collective, consolidated, or representative action. Neither you, nor any other user of the Content can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding.
6.10. Jury Waiver. You understand and agree that by entering into this Agreement you are waiving any right you might have to a jury trial or a trial before a judge in a public court. In the absence of this Section 6, you might otherwise have had a right or opportunity to bring your dispute in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise required by law, those rights are waived.
6.11. Survival. The provisions of this Section 6 shall survive the termination of this Agreement and your use of the Content.
7.1 Third-Party Services. The Content may from time to time link or direct to unaffiliated Third-Party Services. Some of these Third-Party Services permit you to log in using their account and credentials, and may allow you to interact and/or conduct transactions or allow you to configure your privacy settings. In certain situations, you also may be transferred to Third-Party Services through a link, even though it may appear that you are still using the Content. These Third-Party Services might require you to comply with separate terms and conditions, licenses, user's guides, or privacy policies. You agree that all such usage is governed by the Persons in control of those Third-Party Services, and that Ponderware has no control over such Third-Party Services and is not liable for the action or inaction of any such Third-Party Services.
7.2 Disclaimer. Ponderware provides access to the Third-Party Services to you as a convenience, and Ponderware does not verify, make any representations or warranties or take responsibility for any such Third-Party Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THIS AGREEMENT, YOU AGREE THAT PONDERWARE SHALL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SERVICES, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY. PONDERWARE DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY THIRD-PARTY SERVICES AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY PROVIDERS OF THIRD-PARTY SERVICES.
7.4 Additional Fees. Some of these websites may charge separate fees, which are not included in any fees that you pay to Ponderware. Any separate charges or obligations that you incur in your dealings with Third-Party Services are your responsibility and may subject you to additional or different terms and restrictions. You also acknowledge and agree that in certain circumstances your wireless carrier or Internet service provider may charge you fees for data, messaging and/or other wireless access in connection with your registration for, access to, and/or receipt, and use of the Content. You are solely responsible for such fees and services.
7.5 Survival. This Section 7 shall survive the termination of this Agreement.
8.1. Physical Conditions. A very small percentage of individuals may experience epileptic seizures or blackouts when exposed to certain visual images, including without limitation light patterns or flashing lights. If you experience any of the following symptoms while using the Content, immediately discontinue use and consult your physician before resuming use: blackouts, seizures, dizziness, altered vision, eye or muscle twitches, jerking or shaking of arms or legs, loss of awareness, disorientation, confusion, any involuntary movement, or convulsions.
8.2. Mutual Representations and Warranties. Each party represents and warrants that: it has reviewed and understands all the terms of this Agreement; it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
8.3. Severability. If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. To the extent it is not possible under applicable law to change or interpret the provision that is held to be unenforceable or invalid, such provision shall be severed from this Agreement and the remainder of the Agreement shall be given full force and effect.
8.5. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
8.6. Notices. All notices and other communications given in connection with this License shall be in writing and shall be deemed given (1) when sent via email to the last known email address of the party to whom the notice must be delivered, provided that receipt of the notice is acknowledged via a reply email or separate email acknowledging receipt of the notice; (2) three days after being deposited in the United States mail, postage prepaid to the recipient’s address; or (3) posted at https://mooncatrescue.com/ or https://mooncat.community/.
8.7. Sale by Ponderware. This Agreement shall inure to the benefit of Ponderware’s successors in interest, including, without limitation, successors through merger, consolidation, or sale of substantially all of Ponderware’s ownership or assets, and shall continue to be binding upon you.