1 Scope; Wacom Account
1.2.1 When you sign up for a Wacom Account by selecting a user name and password and providing a valid e-mail address (or alternatively by using an existing social media account to provide your information), you are requesting that Wacom makes you an offer to enter into this Agreement. Wacom will confirm receipt of your registration request by e-mail. If Wacom chooses to make you an offer, Wacom will do so by sending you an activation link by e-mail. This may also be combined with the aforementioned confirmation of receipt. The Agreement is effective if and when you activate your Wacom Account by clicking the activation link. The following rules apply to any Wacom Account created through any Wacom Service:
a) You will keep your Wacom Account information, including without limitation your e-mail address and, if applicable, billing information (including billing address) current.
b) The Wacom Account is personal and non-transferable. You may not assign, rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer your Wacom Account to any third party. The same applies to any licences to any Offering that is tied to the Wacom Account, except to the extent and under the conditions the respective applicable terms of such Offering or mandatory statutory law expressly permit the transfer of such licence.
c) You will keep your password confidential and inform Wacom immediately if you have reason to suspect your password has been disclosed to or otherwise obtained by any third party (provided, for clarity, that anyone using the Wacom Account on behalf of the Subscribing Organization (defined below) is not a “third party” for this purpose).
1.3 The Wacom Account is not available to persons under the age of 18 or to anyone whose Wacom Account has previously been terminated. By entering into this Agreement, you represent and warrant that you are at least 18 years old and you have not previously had a Wacom Account terminated. If you are using or opening a Wacom Account on behalf of a company, entity, or organization (collectively, a "Subscribing Organization") then you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such Subscribing Organization to these terms, and that you agree to these terms on behalf of such Subscribing Organization. In such a case "you" in these terms refers to your Subscribing Organization, which shall ensure that each individual user accessing and using the Wacom Account on behalf of the Subscribing Organization complies with the obligations, limitations and restrictions contained herein.
1.4 The Wacom Account can be used across a number of online services and platforms operated by Wacom and/or its affiliated companies. However, additional terms may apply to your access to and use of any Offerings available on or through the Wacom Services and such other online services and platforms. You will be notified of such additional terms and be asked to accept them whenever you try to access, download, or otherwise use an Offering by Wacom, its affiliates or any third party that is subject to such additional terms.
1.5 You acknowledge that the Wacom Services are operated using technology owned and controlled by Wacom’s third party licensor(s). You acknowledge that these licensor(s) is/are not a party to this Agreement and that (i) they retain all right, title and interest in and to their own technology and do not grant you any licence to such technology, (ii) they are not responsible for the operation or the contents of the Wacom Services or the Offerings you may purchase from other third parties through Wacom Services (and Wacom makes no warranties on their behalf), (iii) they do not grant any warranties to you regarding the technology, and (iv) they do not have any other contractual liability to you.
2 Wacom Services
2.1 During the term of this Agreement, Wacom will permit you to access the Wacom Services and use their features and/or functions. Such features or functions may also include opportunities to upload or share content (such as message boards or product review tools). Wacom may, however, make reasonable modifications to the features and functions of the Wacom Services at any time in its discretion, including for instance, to adapt them to new technologies.
2.2 You may enter into agreements regarding Offerings with Wacom, Wacom affiliates and/or third parties through the Wacom Services. Such agreements are subject to the respective terms communicated to you by the respective vendor. In the event of any conflict between the respective custom terms and this Agreement, the custom terms of the Offering prevail.
2.3 The vendor of any Offering will be clearly identified on the respective description page within the Wacom Marketplace.
3.1 You acknowledge that the Wacom Account and the Wacom Services are not data backup services. You will create and maintain adequate regular backups of any and all content you upload or share using the Wacom Account and/or the Wacom Services.
3.2 In using the Wacom Services, you will not:
d) interfere or attempt to interfere with the proper workings of or any activities conducted on the Wacom Services, or access or attempt to access the Wacom Services with any bot, spider, crawler, or other automated system or process, or bypass robots.txt exclusion files or other measures as may be used to prevent or regulate access to the Wacom Services;
e) post, upload, or distribute any content that is defamatory, libelous, inaccurate, unlawful (including in violation of any applicable intellectual property, personality rights, youth protection or similar laws), or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
f) post or upload any content that contains any viruses, adware, spyware, worms, or other malicious code or any content or file that may have the effect of compromising any security or access control feature of the respective Wacom Service or of any Offering;
g) impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Wacom Account of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via any Wacom Service, or perform any other similar fraudulent activity; or
h) post or send unsolicited commercial messages or advertise any goods, software, products, services other than the Offerings available through any Wacom Service.
3.3 You agree to defend, indemnify and hold harmless Wacom, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to: (i) your violation of this Agreement; or (ii) your user content; or (iii) your use of (A) the Wacom Services, your Wacom Account, or the Wacom Sites, (B) the Wacom content, or (C) your use of services and products obtained through the Wacom Services, in each case other than as expressly authorized in this Agreement.
3.3.1 We do not prescreen content posted by users and cannot guarantee the Wacom Services or the Wacom Sites will be free from content that is inaccurate, deceptive, offensive, defamatory, unlawful or otherwise objectionable. You acknowledge that we are acting only as a passive channel for such distribution. We have no liability relating to any user content or activities of other users. In the event we choose to monitor and/or remove any user content, we assume no responsibility for, or any obligation to monitor or remove, such user content or the removal of such content. If you have concerns about any content posted by another user, please use the copyright notice procedures in this Agreement to notify us.
4 Intellectual Property Rights; Licence Grant
4.1 Except where expressly provided otherwise, any licence to any Offering you purchase through any Wacom Service is personal and non-transferable. It is tied to your Wacom Account and you may not assign, rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer it to any third party, except to the extent and under the conditions the respective applicable terms of such Offering or mandatory statutory law expressly permit the transfer of such licence.
4.2 The Wacom Services are the intellectual property of Wacom and/or its licensors. You are granted only a limited, non-exclusive, non-transferable right to use the Wacom Services for the purpose, pursuant to the terms hereof, and for the term of this Agreement. In particular, you may not
a) modify, adapt, translate or create derivative works based upon the Wacom Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; or
b) attempt to disable or circumvent any security mechanisms used by the Wacom Services, or copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Wacom Services or any part thereof, unless (i) specifically authorized by Wacom in writing, or (ii) to the extent such acts are necessary to achieve interoperability with a third software, but only if (a) Wacom or its licensors had not published details about the interfaces of the respective Wacom Service before and has not provided such details upon your written request, (b) only those parts of the respective Wacom Service are disassembled that are necessary to achieve interoperability, (c) the obtained information is only used to achieve interoperability, (d) the obtained information is not made available in any way to any third party except as required for the purpose of achieving interoperability; and (e) the obtained information is not used to develop or market a software which is similar to the respective Wacom Service or for any other actions that infringe Wacom’s and/or its third party licensor’s rights.
4.3 You grant Wacom a non-exclusive, worldwide, royalty-free, transferable and sublicensable licence, limited to the term of this Agreement, to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any content you upload to any Wacom Service, for the purpose of enabling Wacom and/or its licensor(s) to develop, enhance, provide, syndicate, promote, advertise, and provide you and its other customers with, the Wacom Services and their feature and functions (e.g. product reviews, social or community features, contests, etc.) and otherwise perform its obligations hereunder.
5 Warranty Disclaimer; Limitation of Liability
5.1 YOU USE THE WACOM SERVICES AT YOUR OWN SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, QUALITY, PERFORMANCE, MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT RELATED TO OR ARISING OUT OF THE SERVICES, ANY MATERIALS OR USER CONTENT, OR ANY PRODUCTS OR SERVICES PURCHASED OR MADE AVAILABLE THROUGH THE SERVICES, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. WACOM DOES NOT WARRANT THAT THE WACOM SERVICES WILL PROVIDE CONTINUOUS, PROMPT, SECURE, OR ERROR-FREE SERVICE. WACOM ASSUMES NO LIABILITY FOR ANY ERRORS OR OMISSIONS, INCLUDING THE INACCURACY OF CONTENT, OR FOR ANY DAMAGES OR LOSSES THAT YOU OR ANY THIRD PARTY MAY INCUR AS A RESULT OF THE UNAVAILABILITY OF THE SERVICES. WACOM ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ARISING FROM YOUR USE OF THE SERVICES.
5.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WACOM SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED, WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY OR ANY OTHER LEGAL THEORY. WACOM’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY FEES WITH RESPECT TO ANY SERVICE OR PRODUCT PURCHASED THROUGH THE WACOM SERVICES IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST WACOM, OR (2) US$100.00. Applicable law may not allow certain limitations or exclusions of liability, so some of the above limitations may not apply to you. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement excludes or limits our liability for fraud or for death or personal injury caused by our gross negligence.
5.3 These limitations of liability also apply for the benefit of Wacom’s directors, officers, employees, licensors, freelancers, subcontractors, representatives and agents of any kind.
5.4 For clarity, the warranties and liability of the relevant provider of any Offerings you may purchase from Wacom, its affiliates and/or any third parties through the Wacom Services is subject to the separate terms and conditions applicable to the relevant Offering.
6 Copyright Infringement Notification Procedure
6.1 Wacom respects intellectual property rights. If you believe your copyrighted work has been copied or posted on or through the Wacom Services in a way that constitutes copyright infringement, then please contact us at email@example.com and provide the following information:
6.1.1 A description of the copyrighted work that you believe has been infringed;
6.1.2 A description of what the allegedly infringing work is;
6.1.3 A description of the location where the allegedly infringing work is located on the Wacom Services;
6.1.4 An address and telephone number where you can be contacted, including an email address if possible;
6.1.5 A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
6.1.6 A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright; and
6.1.7 A statement, made under penalty of perjury, that the above information in the notice is accurate and that the signatory is the copyright owner or is authorized to act on behalf of the copyright owner.
Consult your legal advisor before filing an infringement notice, because there can be penalties for false claims.
7 Term and Termination
We reserve the right in our sole discretion to (i) terminate your account, (ii) delete any of your content, (iii) restrict your use of all or any part of the Wacom Sites or Wacom Services, and (iv) modify or discontinue the Wacom Sites or Wacom Services (or any part thereof), for any or no reason, without notice, and without liability to you or anyone else. We also reserve the right to block users from accessing or posting content to the Site by using any technology available, such as blacklisting certain IP addresses or device numbers. In the event of a no-cause termination or discontinuance by Wacom, you will be entitled to reimbursement of a pro rata portion of any unused, prepaid fees paid to Wacom.
8 Modification of Terms
We have the right to change this Agreement at any time. We agree to post a notice of the changes in the footer of the Wacom Sites and, if you provided us with an email address, email you a notice of the changes to the email address we have on file. The changes will be effective 30 days after posting and emailing such notice. Your continued use of the Wacom Services or the Wacom Sites will be considered your acceptance to the revised Agreement.
9.2 This Agreement shall be governed by the laws of the State of Oregon, without giving effect to its conflict of laws provisions. To the extent it may be applicable, you agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.
9.3 You agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Multnomah County, Oregon, and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise.
9.4 The language of this Agreement is English. The English version of this Agreement controls in the event of any discrepancy with other translated versions of this Agreement.
Last modified: 1 March 2018.