TERMS OF USE

Last Updated: 8/1/07

Welcome to Emergent Success, Inc.!

This website is operated by Emergent Success, Inc. ("Emergent Success", "we", "our" or "us"). This Terms of Use ("Agreement") covers your use of our website (the "Site"), including accessing, viewing, posting, and using the Site.
  1. Acceptance of Terms of Use By accessing, viewing or using the Site, you acknowledge and agree to the terms stated in this Agreement. If you do not agree to these terms, you may not access, view or use the Site.

    This Agreement is an ongoing contract between you and Emergent Success and applies to your use of the Site. This Agreement affects your rights and you should read it carefully.
  2. Changes to Terms of Use Emergent Success reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the Site or any part thereof in its sole and absolute discretion with or without notice. The most current version of this Agreement can be reviewed by clicking on the "Terms of Use" located at the bottom of the pages of the Site. The most current version of this Agreement will supersede all previous versions. Your use of the Site or continued use of the Site after changes are made means that you agree to be bound by such changes. Emergent Success will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, temporarily or permanently.
  3. User Conduct As a condition of use, you agree to all of the following:
    1. You are solely responsible for your conduct and any content that you submit, post, and display on the Site, or that you allow others to submit, post and/or display on the Site under your name.
    2. You must not upload, post, email, transmit or otherwise make available through the Site any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable.
    3. You must not upload, post, email, transmit or otherwise make available through the Site any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," "affiliate links," or any other form of solicitation.
    4. You must not violate any local laws in your jurisdiction or applicable federal, state or foreign laws (including but not limited to intellectual property laws).
    5. You must not use the Site for any illegal or unauthorized purpose. If you are an international user, you agree to comply with all local laws regarding online conduct and acceptable Content (as defined below).
    6. You agree not to post, email, or otherwise make available through the Site Content that:
      • Impersonates a Emergent Success employee or user or falsely states or otherwise misrepresents your affiliation with a person or entity;
      • Includes personal or identifying information about another person without that person's explicit consent;
      • Is false, deceptive, misleading, deceitful, or constitutes "bait and switch";
      • Infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
      • Contains software viruses, worms, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
      • Disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site, or that otherwise negatively affects the ability of other users of the Site to use the Site; or
      • Employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of content transmitted through the Site.
    7. Additionally, you agree not to:
      • "Stalk" or otherwise harass anyone on the Site;
      • Collect any personally identifying data about users for commercial or unlawful purposes;
      • Attempt to gain unauthorized access to Emergent Success' computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Site; or
      • Develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the Site.
  4. Content Submitted To The Site Or Made Available To The Site
    1. License Grants. When you post any comments, information, ideas, concepts, techniques or any other material contained in any communication you may send to us ("Content"), including, without limitation, responses to questionnaires or through postings to the Site without further compensation, acknowledgement or payment to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Site. Furthermore, by posting any Content on the Site, submitting Content to us, or in responding to questionnaires, you automatically grant Emergent Success a royalty-free, perpetual, irrevocable, transferable, non-exclusive worldwide license to (i) display, use, reproduce, modify, publish, edit, translate, adapt, distribute, perform, and display the Content alone or as part of other works in any form, media, or technology whether now known or later developed, and to (ii) freely and fully sublicense such rights through single or multiple tiers of sublicensees, and to (iii) transfer such rights to the acquiring company if Emergent Success is acquired.

      You also expressly acknowledge and agree that Emergent Success shall have the right to grant a Creative Commons Attribution-NonCommercial License ("CC License"), available at http://creativecommons.org/licenses/by-nc/3.0/ for all Content posted on or through the Site, including Content that you post on or through the Site. In cases where Emergent Success licenses the Content through a CC License, you agree that any attribution required under the CC License shall be to the original author (by name or pseudonym) of the Content.

      Please note that Emergent Success does not accept unsolicited materials or ideas for use or publication, and is not responsible for the similarity of any of its content or programming in any media to materials or ideas transmitted to Emergent Success. Should you send any unsolicited materials or ideas, you do so with the understanding no additional consideration of any sort will be provided to you, and you are waiving any claim against Emergent Success and its affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the idea you sent.
    2. Links to Other Sites and Resources. The Site contains links to other websites or resources. Emergent Success has no control over such external sites and resources. In addition, other websites may link to the Site. You agree that (i) Emergent Success is not responsible for the availability or accuracy of such external sites and resources, and (ii) Emergent Success does not endorse nor is it responsible or liable for any content, advertising, products, or materials on or available from such external sites and resources.
    3. Inappropriate User Submitted Content. Emergent Success prohibits certain user conduct and content described above and, without obligation, will use reasonable efforts to eliminate such conduct and content from the Site. Nevertheless, you acknowledge and agree that (i) Emergent Success is not and cannot be responsible for content posted by users of the Site, (ii) you may be exposed to any such materials or content, and (iii) you must bear all risks associated with the exposure to and/or use of any content, including without limitation any reliance on the accuracy, completeness, or usefulness of such content.
  5. Privacy Policy We take the privacy of our users very seriously. Our Privacy Policy is available at www.emergentsuccess.com/company/policies/privacy. By accepting this Agreement, you agree to be bound by our Privacy Policy, which is by this reference expressly incorporated into this Agreement. The effective date of our Privacy Policy will be noted at the top of our Privacy Policy.
  6. Indemnity By accepting this Agreement, you agree to indemnify and hold Emergent Success and its subsidiaries, affiliates, officers, directors, agents, employees, stockholders, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise make available through the Site, your use of the Site, your connection to the Site, your violation of this Agreement (including our Privacy Policy), or your violation of any rights of another.
  7. Warranty Disclaimers

    YOU AGREE THAT YOUR USE OF THE SITE PROVIDED BY EMERGENT SUCCESS SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, EMERGENT SUCCESS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF. THE SITE AND ITS CONTENTS ARE PROVIDED "AS IS" AND EMERGENT SUCCESS MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE SITE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, OMISSIONS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, (VI) ANY CONDUCT BY USERS OF THE SITE, AND/OR (VII) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SITE. EMERGENT SUCCESS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND EMERGENT SUCCESS WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

    EMERGENT SUCCESS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA OUR SITE IS ACCURATE, COMPLETE OR CURRENT.
  8. Limitation of Liability

    YOU AGREE THAT EMERGENT SUCCESS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH: (I) THE USE OR THE INABILITY TO USE THE SITE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (V) ANY OTHER MATTER RELATING TO THE SITE.

    YOU AGREE THAT EMERGENT SUCCESS' AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).

    SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
  9. Termination

    We reserve the right to terminate your permission to use the Site immediately, without prior notice or liability, for any reason. If we terminate your permission to use the Site, your right to use or access the Site will immediately cease.

    All provisions of this Agreement will survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
  10. Intellectual Property
    1. Copyright. All Content included on the Site, including, text, graphics, logos (other than as noted), designs, button icons, images, digital downloads, data compilations, and software, is the property of Emergent Success, or its suppliers and is protected by the United States and international copyright laws. The compilation of all content on the Site is the exclusive property of Emergent Success, and protected by U.S. and international copyright laws. Content shall not be reproduced or used without express written permission from Emergent Success, or its suppliers. You agree not to decompile, reverse engineer or disassemble any software or other products or processes accessible through the Site, not to insert any code or product or manipulate the content of the Site in any way that affects the user's experience, and not to use any data mining, data gathering or extraction method. Emergent Success reserves the right to terminate your user account if Emergent Success, in its sole and absolute discretion, believes that you are in violation of this paragraph.
    2. Trademarks. Emergent Success, the Emergent Success logo, and other Emergent Success logos and names are trademarks of Emergent Success. The Site, including but not limited to its graphics, logos, page headers, button icons, scripts and service names constitute trade dress of Emergent Success. The trademarks, service marks and trade dress of Emergent Success may not be used or reproduced without prior written approval from Emergent Success and may not be used in connection with any product or service that is not affiliated with Emergent Success, in any manner that is likely to cause confusion among users, in any manner that dilutes the rights of Emergent Success, or in any manner that disparages or discredits Emergent Success. Other trademarks that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Emergent Success.
  11. Electronic Communications

    By using the Site, you consent to receiving electronic communications from Emergent Success. These communications will include notices about your account and information concerning or related to our Site. These communications are part of your relationship with Emergent Success and you receive them as part of your user account. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
  12. Limitations on Use

    The Site and the Content are intended for persons of at least 18 years of age. While individuals under the age of 18 may utilize the Site, they may do so only with the involvement of a parent or legal guardian. We do not intentionally seek to collect information from individuals under 13 years of age. Unless otherwise specified, the content on the Site is for your personal and non-commercial use and we grant you a limited license to access the Site for that purpose. You may not download (other than through page caching necessary for personal use), modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from, the Site without our express written consent. Any unauthorized use of the Site or its contents will terminate the limited license granted by us.
  13. Miscellaneous Provisions
    1. Entire Agreement. This Agreement, including Emergent Success' Privacy Policy, which are hereby incorporated by reference, constitute the entire agreement between you and Emergent Success and governs your use of the Site, superseding any prior agreements between you and Emergent Success.
    2. Governing Laws. The Terms of Use will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions.
    3. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrators will be selected from a panel of persons having experience with and knowledge of electronic commerce, software code development, and the Internet. In the event that any party's claim exceeds $1 million, exclusive of interest and attorneys' fees, the dispute shall be heard and determined by three arbitrators. The place of arbitration shall take place in Santa Clara County, California, USA. Any judicial proceeding following arbitration shall take place in the State or Federal courts within the judicial district where the arbitration took place.
    4. Waiver and Severability. The failure of Emergent Success to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
    5. Notices. Emergent Success may provide you with notices, including, without limitation, those regarding changes to this Agreement and other Site-related announcements, by email or postings on the Site.
    6. Future Modifications of Agreement. We reserve the right to modify this Agreement at any time, and without prior notice, by posting amended terms on this website. Your continued use of the Site indicates your acceptance of the amended Agreement.
    7. Assignment. Emergent Success may assign this Agreement to any successor or purchaser of Emergent Success or all or substantially all of its assets. This Agreement will bind and inure to the benefit of Emergent Success' successors and assigns.
    8. Headings. Section titles and headings in this Agreement are for convenience only, and have no legal or contractual effect.
    9. Contact Information. Please send us any questions or comments, or report any violations of this Agreement.