Acceptance of Terms of Use Agreement.

This website (“Website”) is provided by 5000fish, Inc., a Nevada corporation (the “Company”) for subscribers and users of its software (the “Software”). Your use of the Website and access to any of the Software products including license and subscription rights (“Subscription”) and support and other services offered on the Website (collectively, the “Services”) are subject to this Terms of Use Agreement (“Agreement”). By registering for or using the Website, you acknowledge your acceptance of this Agreement and agree to be contractually bound by its terms. If you are agreeing to these Terms of Use on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement. If you do not accept the Terms of Use, you should immediately cease all usage of this Website. The Company may modify the Terms of Use at any time without notice to you by posting revisions on the Website. Your continued use of the Website constitutes your binding acceptance of this Agreement, including any modifications made by The Company.

Privacy

The Company takes our obligations to protect your privacy very seriously, and wants you to feel comfortable that in your use of this Website your privacy is secured. Please visit our Privacy Policies for more information.

Use of the Website and Registration.

Subject to the terms of this Agreement, users who have not registered (“Unregistered Users”) may use this Website to access information about the Software, Subscriptions and Services. Users who have registered (“Registered Users”) may use this Website to access information about the Software, Subscriptions and Services, to purchase and renew Subscriptions and Services, download Software, and access as well as participate in user forums.

In the registration process, a user will be requested to submit the specific identification and contact information and will be assigned a unique account, unique user identification (“User ID”), and unique password for access to the Registered Users areas of the Website. Any User ID and/or password, and any authorization codes or similar verification identifier provided to any User will remain the property of the Company. They should be maintained as confidential and should not be disclosed or distributed to third parties. It is your responsibility to notify the Company if you need to change or discontinue your User ID and password.

Termination Or Suspension

You agree that the Company, in its sole discretion, may terminate or suspend or discontinue your use of the Website and the Services at any time and for any or no reason. Upon such suspension or termination, you must immediately discontinue use of the Website and destroy any copies you have made of any portion of any content or material obtained from the Website. Accessing the Website or the Services after such termination, suspension or discontinuation shall constitute an act of trespass. Further, you agree that the Company shall not be liable to you or any third party for any termination or suspension of your access to the Website and/or the Services.

Upon any cancellation or termination of a subscription, a user’s rights to access the affected Software and Services over this Website also will be immediately terminated. However, in such case the former subscriber will still be a Registered User and may submit a new Order Form for a new subscription.

Intellectual Property Rights; Tradenames and Logos

All right, title and interest, including but not limited to all copyright, trademark and other intellectual property rights, to the Website, Software and Service that is made available for download from this Website and any text, graphics, logos, images, Flash or Java animation, sound, video or other media file or other related content (“Content”) on this Website provided by the Company, belongs exclusively to the Company and/or its licensors. Any access to, use, reproduction, redistribution modification of, or creation of derivative products from, the Software or any Content not in accordance with the License Agreement is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. The Website also may include trademarks, service marks or logos of other third parties. All of these trademarks, service marks and logos are the property of their respective owners, and you agree not to use them in any manner without the prior written permission of the applicable owner.

Without limiting the foregoing, the Company retains all intellectual property rights title and interests, including but not limited to in any and all copyrights, trademarks and trade name protection, to “5000fish,” “Yurbi™,” and any related service marks, logos and designs (collectively “Tradenames and Logos.”). Neither the Website nor this Agreement grants any license, express or implied, to utilize the Tradenames and Logos without our prior permission. The Company reserves all rights under equity and law to enforce this prohibition.

Compliance with Children’s Online Privacy Protection Act

5000fish does not collect any personally identifiable information from children under the age of thirteen (13), and such children are not permitted to register on a 5000fish web site or use any functionality for which registration is required.

Third-Party Websites, Products, and Services

The Website may contain links to other Internet websites owned by third parties. Your use of each of those websites is subject to the conditions, if any, that each of those websites have posted. The Company has no control over websites that are not ours, and the Company is not responsible for any use of such websites or content on them. The Company’s inclusion on the Website of any third-party content or a link to a third-party website is not an endorsement of that content or third-party website. Some content may come from government sources, is in the public domain, and is not copyrightable.

User Content and Conduct on the Website

Use Generally. You may use this Website only for your internal business purposes in connection with your limited rights as an Unregistered or Registered User and your valid subscription for Software and Services. Except for the foregoing, you may not modify, publish, transmit, download, participate in the transfer, rent or sale of, reproduce, create derivative works of, distribute, publicly perform, reverse engineer, publicly display, or in any way exploit any of the Software, materials or content on the Website in whole or in part. The technology and the software underlying the Website and the Services are the property of The Company and/or the Company’s affiliates, suppliers and partners. You further agree not to modify the software underlying the Website in any manner or form or to use modified versions of such software, including, without limitation, for the purpose of obtaining unauthorized access to the Website.

Unauthorized Access or Use. Unauthorized Access to the Website is a breach of this Agreement and a violation of the law. You agree not to access the Website by any means other than through the interface that is provided by the Company for use in accessing the Website. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Website, except those automated means that the Company has approved in advance in writing. You also agree not to access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

Confidential Information. You agree to hold in trust and strict confidence any confidential or proprietary information or trade secrets (“Confidential Information”) to which you may gain access over the Website or in the course of the use of any Software or Service, and agree that such Confidential Information shall be used only for the contemplated purposes, shall not be used for any other purpose, or disclosed to any third party, except as may be required by a competent legal authority. All Confidential Information remains the property of the Company. No documentary or electronic copies of Confidential Information will be made or retained without the permission of the Company and all such documentary or electronic copies shall be returned to the Company immediately upon request.

Registration Information. If the Company requests registration information from you, you will provide the Company with true, accurate, current, and complete information, and you will promptly update your registration to keep it accurate, current, and complete. If the Company issues you one or more User IDs and passwords, you may not reveal them to anyone else. You may not use anyone else’s User ID or password. You are responsible for maintaining the confidentiality of your accounts, User IDs and passwords. You agree to immediately notify the Company of any unauthorized use of your User IDs, passwords or accounts or any other breach of security. You also agree to exit from your accounts at the end of each session. The Company will not be responsible for any loss or damage that may result if you fail to comply with these requirements.

If the Company provides you with an administrator User ID and password for accessing the Service, you will assign them to your administrator. You will be responsible, through your administrator, for setting and modifying your and your users’ profile and preferences for the Services, authorizing and terminating individual User ID’s and passwords and specifying the access rights of those individuals to the Services. The administrator will notify the Company if the administrator needs to change the administrator’s or any User’s ID, and the administrator may do so only by contacting the Company at the email address for technical support specified by the Company from time to time.

If you choose a User ID that, in the Company’s sole discretion, is obscene, indecent, abusive or that might otherwise subject the Company to public disparagement or scorn, the Company reserves the right, without prior notice to you, to automatically change your User ID, delete your posts from the Company’s Website, deny you access to the Company’s Website, or any combination of these options.

User Content. You are solely responsible for all materials, whether publicly posted or privately transmitted, that you upload, post, e-mail, transmit, or otherwise make available on the Website or through the Service (“User Content”). You have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of User Content. User Content will be protected by the Company with at least the same precautions that the Company takes to protect its similar proprietary information from unauthorized disclosure. You warrant that you own or have sufficient legal right to the intellectual property rights in User Content and that User Content, including any use thereof by the Company as described herein, does not violate applicable law or the rights of any third party.

To the extent offered over the Website, you agree to use the Company’s bulletin board services, chat areas, news groups, forums, communities and/or message or communication facilities only to send and receive messages and material that are proper and related to that particular group or forum.

Without limiting the foregoing, you agree that you will not use the Website to take any of the following actions:

  • Defame, abuse, harass, stalk, threaten, or otherwise violate the legal right of others;
  • Publish, post, upload, e-mail, distribute, or disseminate (collectively, “Transmit”) any inappropriate, profane, defamatory, misleading, infringing, obscene, indecent, or unlawful content;
  • Transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person’s computer, the Company’s Website, any software or hardware, or telecommunications equipment;
  • Advertise or offer to sell any goods or services for any commercial purpose unless you have the Company’s written consent to do so;
  • Transmit surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, chain letters or other unsolicited messages;
  • Download any file that you know or reasonably should know cannot be legally obtained in such manner;
  • Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other material;
  • Restrict or inhibit any other user from using and enjoying any area within the Website;
  • Interfere with or disrupt the Company’s Website, servers, or networks;
  • Probe, scan or test the vulnerability of the Website or circumvent any security mechanism used by the Website;
  • Impersonate any person or entity, including, but not limited to, any Company representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • Forge headers or manipulate identifiers or other data in order to disguise the origin of any content transmitted through the Website or to manipulate your presence on the Website;
  • Take any action that imposes an unreasonably or disproportionately large load on The Company’s infrastructure;
  • Engage in any illegal activities; or
  • Collect, store or transmit personal information about individuals or any information that is subject to applicable privacy laws or regulations, including but not limited to, any “Protected Health Information” as defined by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations.

Company Monitoring and Use of User Content. The Company has the right, but not the obligation, to monitor User Content on the Website, including but not limited to postings and other communications or material uploaded by users, to determine compliance with this Agreement and any other applicable policies of the Company or law, regulation or authorized governmental request. We reserve the right, in our sole discretion and without prior notice, to edit, refuse to post or remove any material submitted to or posted on the Website that we find to be in violation of this Agreement or otherwise objectionable.

By posting User Content, you grant to the Company a royalty-free, perpetual, irrevocable nonexclusive license to use, reproduce, modify, publish, translate, distribute, perform and display such User Content alone or as part of other works in any form, media, or technology whether now known or hereafter developed. This license shall always be subject to the confidentiality requirements of our Privacy Policies. You also grant to other users the right to access, view, store, and reproduce the information for personal use, but not for redistribution without the express, written permission from the Registered User from whom the information is derived.

Compliance with Laws. Use of the Website is subject to existing laws and legal process. You will be responsible for all activity occurring under your accounts and will comply with all applicable local, state, and foreign laws, treaties and regulations in connection with your use of the Services and the Software, including without limitation, laws and regulations governing data privacy, international communications and transmission of technical or personal data. Nothing contained in this Agreement will limit the Company’s right to comply with governmental, court, and law-enforcement requests or requirements relating to your use of the Website, which may include disclosing User Content to the applicable authorities.

Special Notices

California Consumer Protection Notice. Pursuant to California Civil Code Section 1789.3 and California Business and Professions Code Section 17538, residents of California are hereby advised that the provider of the electronic commercial service on this site is 5000fish, Inc., 2850 Horizon Ridge Parkway Suite 200, Henderson, Nevada 89052; 1-855-GET-5000 or email info@5000fish.com. Users are notified in advance regarding any applicable service charges. For more information or to resolve a complaint, please contact us at the above address. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in California may be contacted in writing at 400 R. Street, Suite 3090, Sacramento, CA 95814 or by calling 1-800-952-5210. Upon Your request, you may have these Terms of Use sent to you by email.

The Digital Millennium Copyright Act Notice. Members may post content to the Website, which may include copyrighted works. The Digital Millennium Copyright Act, 17 U.S.C. Section 512 (“DMCA”) provides a process for a copyright owner to give notification to an online service provider concerning alleged copyright infringement. Upon our receipt of a valid DMCA notification, the offending content will be taken down. The following information must be included in your notification: (i)a description of the copyrighted work that is the subject of claimed infringement; (ii) a description of the infringing material and information sufficient to permit us to locate the alleged material; (iii) contact information for you, including your address, telephone number and/or e-mail address; (iv) a statement by you that you have a good faith belief that the material in the manner complained of is not authorized by the copyright owner, or its agent, or by the operation of any law; (v) a statement by you, signed under penalty of perjury, that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed; and (vi) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner’s behalf. Any claim regarding potentially infringing posted material should be sent to: 5000fish, Inc. 2850 Horizon Ridge Parkway Suite 200, Henderson, Nevada 89052; 1-855-GET-5000 or email info@5000fish.com attention: MarDee Hosley (our agent for notice of infringement claims).

Communications Decency Act Notice. Under the Communications Decency Act, 47 U.S.C. Section 230 (“CDA”), The Company is not liable for defamation or other claims arising from User Content posted to the Website. Because it permits posting by user, the Company’s Website is an “interactive computer service” under the CDA. The Company is not responsible for, and does not exercise any editorial or other control over, any User Content, but rather merely serves as a “publisher” of User Content.

Third Party Claims and Indemnification

You agree to indemnify and hold the Company, its owners, subsidiaries, affiliates, officers, advisors, agents and employees, harmless from any claim or demand, including attorneys’ fees and dispute resolution costs, made by any third party due to or arising out of your use of the Website, Software and Services or violation of this Agreement, or the infringement of these Terms of Use by any other person using your computer facilities. You shall notify the Company immediately In the event of any third party claim, and shall cooperate fully with the Company in any defense of such claim.

The Company’s exclusive indemnification obligations to subscribers of the Software are set forth in the MSA, provided however, that the Company will not be obligated to indemnify you if you are in violation of this Agreement.

If as a result of any infringement or misappropriation by the Company the use of any Services or material on the Website is enjoined by a court of law, the Company will modify such Services or material to make it non-infringing, acquire a license to permit continued its access and use, or if neither option is possible, refund any applicable fees directly relating to the infringing Services or material, if any, paid by you during the 12 month period preceding the injunction. This is your exclusive remedy for a third party’s infringement or misappropriation claim against your use of the Website.

Warranty Disclaimers

EXCEPT AS OTHERWISE WARRANTED IN THE MSA, THE PORTAL INCLUDING ALL RELATED CONTENT AND MATERIALS, AS WELL AS THE SOFTWARE AND SERVICES, ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, WITH ALL FAULTS. THE COMPANY AND ITS AFFILIATES, SUPPLIERS AND PARTNERS MAKE NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE PORTAL OR ANY OF THE CONTENT, SERVICES, PRODUCTS, SOFTWARE OR OTHER MATERIALS AVAILABLE THROUGH THE PORTAL INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NONINFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ON THE PORTAL. ANY INFORMATION ABOUT COMPETITIVE PRODUCTS IS NOT TO BE USED OR DISTRIBUTED WHERE PROHIBITED BY LAW.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE COMPANY NOR ITS AFFILIATES, SUPPLIERS OR PARTNERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE SERVICES OR THE SOFTWARE, SERVICES, THE PORTAL OR ITS CONTENT OR OTHER MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR LOSS OF DATA OR OTHER INTANGIBLE LOSSES. IN ANY JURISDICTION THAT DOES NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE COMPAN’S LIABILITY AND THAT OF ITS AFFILIATES, SUPPLIERS AND PARTNERS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS MAY OTHERWISE BE PROVIDED IN THE MSA, THE COMPANY AND ITS AFFILIATES, SUPPLIERS AND PARTNERS WILL NOT BE LIABLE FOR ANY DAMAGES THAT EXCEED THE TOTAL AMOUNTS PAID BY YOU TO THE COMPANY FOR SERVICES DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

Discontinuance of Service and Force Majeure.

The Company reserves the right, in our sole discretion and without prior notice, to modify or discontinue any Services or the Website. We shall not be liable to any user or any third party in the event of such discontinuance. You acknowledge and accept that the Company does not guarantee continuous, uninterrupted or secure access to the Website and operation of the Website may be interfered with or adversely affected by numerous factors or circumstances outside of our control.

Except for payments by a subscriber, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.

Disputes and Arbitration.

Any dispute arising out of or relating to this Agreement or the Website will be finally settled by arbitration, except that the Company may bring an action in a court of competent jurisdiction with respect to any dispute affecting the Company’s intellectual property rights whether statutory or contractual. The arbitration will be conducted before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Clark County, Nevada or Reston, Virginia, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator has no authority to award damages in excess of those permitted in this Agreement for any reason. Any award in excess of such limitation will be deemed void as between the parties. The parties will share the arbitration fees equally; provided, however, that the prevailing party may recover attorney’s fees and all arbitration costs from the losing party.

If you have a dispute with one or more users, you release the Company, and the Company’s officers, directors, agents, affiliates and employees, from claims, demands, and direct or indirect damages of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident or incorporated in California, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not known or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Import and Export.

You may not use, import or export materials on this Website in violation of United States, or any other applicable country’s, import and export laws and regulations. The Company assumes no responsibility or liability for your failure to obtain any necessary export approvals. Without limiting the foregoing, you agree that the Website will not be used, and none of the underlying content, information, software, or technology may be transferred or otherwise exported or re-exported to persons subject to restrictions, destinations subject to embargo, or to prohibited proliferation-related end-users or end-uses, without obtaining any export license or other approval that may be required under United States, and any other applicable country’s, laws, regulations and requirements. You hereby certify that no information acquired through the use of the Company’s Software, Services or Website, is or will be used for nuclear activities, chemical or biological weaponry, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes. Please consult the Bureau of Industry and Security website www.bis.doc.gov before exporting the Company’s products from the U.S.

Use by United States Government

The Website, Software and Services, including all related content and materials, will be deemed “commercial computer software” and “commercial computer software documentation” pursuant to DFAR Section 227.7202 and FAR Section 12.212 (and any successor sections). The use of the Website, Software and Services including, but not limited to, their reproduction and display, by the United States of America (“U.S. Government”), regardless of form, will be governed by this Agreement.

Miscellaneous

Notices. Any notice that the Company may be required to make shall be effective upon the Company’s posting it on the Website or delivering it to you through e-mail or to such other address as you may provide. You may update your contact information by updating your profile or your account. The Company cannot be held liable for failure to notify you if you do not provide the Company with accurate contact information.

Choice of Law; Jurisdiction. This Agreement will be interpreted in accordance with the laws of the State of Nevada without regard to its conflicts of law principles, and applicable United States federal law. The state and federal courts located in Clark County, Nevada or Fairfax County, Virginia will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, limited, modified as nearly as possible, or severed if necessary, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

No Agency. No joint venture, partnership, employment, or agency relationship exists between you and the Company as a result of this Agreement or use of the Software, Service or Website, and nothing in this Agreement will permit either party to obligate the other party to any third party.

No Waiver. The failure of the Company to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing.

Assignment. This Agreement may not be assigned by you without the prior written approval of the Company but may be assigned by the Company to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Vendor’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.

Entire Agreement. This Agreement, together with any applicable Order Form as well as the MSA and Yurbi Support Guide comprises the entire agreement between you and the Company and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

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