Pincushion Terms of Use

By accessing, downloading, or otherwise utilizing this web site and software ("Pincushion Service, Software, and Site", "Service", "Software", "Site"), you agree to be bound by the following Terms of Use ("TOU"). These Terms of Use are also the Pincushion Software License Agreement to which you agree and are bound. Higher Function reserves the right to update the TOU at any time without notice to you. The most current version of the TOU can be reviewed by clicking on the "Terms of Use" hypertext link located at the bottom of our Web pages, by clicking the License Agreement link from the About Box of the Pincushion Software, or visiting the web page located at http://www.mypincushion.com/legal/TermsOfUse.aspx.

PERSONAL USE ONLY

Higher Function, Inc. provides the Pincushion Web Site (accessed at http://www.mypincushion.com/ and other URLs as periodically made available), referred to herein as the "Site", and the Pincushion Software (available for download from http://www.mypincushion.com/install/), referred to herein as the "Software", collectively referred to herein as the "Service", for your personal, non-exclusive, non-commercial use (at home, at work, or in any other location you are legally allowed to access the Service).

You may not modify, distribute, re-distribute, copy, license, sell, display, perform , transfer or create derivative works from any information or software associated with the Service, without first obtaining written permission from a duly authorized employee or agent of Higher Function, Inc. You may not disassemble, analyze, decompile, portscan, script, fuzz, or otherwise attempt to reverse engineer, abuse, or penetrate the Software or the Service. You agree to report any security or integrity failures you may discover in the Service to Higher Function immediately at the email address abuse@higherfunction.com. You may not use the Service in any manner that could impair, damage, degrade, overburden, disable, or otherwise negatively impact the availability, performance, security, or manageability of the Service or any third party’s use thereof. You may not use any software, scripts, or computer systems to access or re-publish the Service and the Service’s managed data except those created and published by, or duly authorized by, Higher Function, Inc.

CONDITIONS OF USE

Higher Function, Inc. grants you a personal, non-exclusive, non-commercial license to install the Software and utilize the Site and Service with a Pincushion Account provided you adhere to our acceptable usage policy, the terms of which include:

Multiple Pincushion accounts operated or controlled by a single individual are prohibited except as authorized in writing by Higher Function, Inc.
Accounts utilized, or intended to be utilized, primarily for the purpose of promotion of a person, product, or service, whether commercial or non-commercial in nature, are prohibited except as authorized in writing by Higher Function, Inc.
The posting of offensive, illegal, criminal, nasty, tortuous, abusive, defeatist, abusively malformed or otherwise unacceptable content, as determined by us, at out sole discretion, is prohibited.
Using the Service to deliver or relay bulk, unsolicited, or undesirable, as determined by us, at out sole discretion, e-mail, Instant Messages, or other types of communications is prohibited.
Attempting to alter, deface, overwrite, abuse, or otherwise alter the User Experience delivered by the Service through the intentional posting of malformed or improperly formatted content or input is prohibited.

We reserve the right to mark, disable, or remove content; suspend, merge, or terminate accounts; blacklist email addresses, IP addresses and IP netblocks; and take other actions we deem appropriate when, at our sole discretion, these policies are violated.

LINKS TO THIRD PARTY SITES

The Service maintains references, and provides links, to third-party Web sites. The linked sites are not under the control of Higher Function and Higher Function is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Higher Function is not responsible for Webcasting or any other form of transmission received from any linked site. Higher Function is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Higher Function of the site. You understand that interacting with the internet and the Web are inherently dangerous activities that may result in infection with virus, trojan horse, worm, nematode, bot and other hostile computer code, and that Higher Function has no obligation nor ability to protect you from such hazards.

INTELLECTUAL PROPERTY

You acknowledge that Higher Function, Inc. owns all right, title, and interest in and to the Pincushion Web Site, Pincushion Software, Pincushion Service, and all associated trade and service marks. You further acknowledge that you grant Higher Function an irrevocable, unrestricted license to store, copy, transmit, publish, re-transmit, re-publish, derive, distribute and otherwise use and profit from all information and content you Submit to Higher Function and the Pincushion Service. No compensation will be paid with respect to any Submission of information or content. Higher Function is under no obligation to publish or otherwise utilize any Submission and may remove any Submission at any time, at our sole discretion. By Posting a Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in these Terms of Use including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submission.

We encourage you to submit critique and ideas for improvements to the Software, Site and Service. By submitting ideas and critique, you grant Higher Function permission to use and incorporate your ideas into the Service or other products and services without compensation.

Pincushion incorporates patent pending technologies. Pincushion, My Pincushion, Pincushion Networks, Higher Function, Interest Engine, and/or products and services referenced herein are trademarks or registered trademarks of Higher Function, Inc.

RESTRICTED RIGHTS LEGEND

Any Software which is downloaded, or Service utilized, for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Higher Function, Inc. 2928 SE Hawthorne Blvd, Suite 101, Portland Oregon 97214.

DISCLAIMER OF WARRANTY

Higher Function disclaims any responsibility for any harm resulting from your use of the Pincushion Service.

PINCUSHION SERVICE, SOFTWARE, AND SITE IS PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. HIGHER FUNCTION EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. HIGHER FUNCTION DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF PINCUSHION SERVICE, SOFTWARE, AND SITE.

YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE OF THE PINCUSHION SERVICE, SOFTWARE, AND SITE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF PINCUSHION SERVICE, SOFTWARE, AND SITE.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL HIGHER FUNCTION BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER'S USE OR MISUSE OF THE PINCUSHION SERVICE, SOFTWARE OR WEB SITE. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF HIGHER FUNCTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE PINCUSHION SERVICE, FROM INABILITY TO USE THE PINCUSHION SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PINCUSHION SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. YOU AGREE NOT TO UTILIZE THE PINCUSHION SERVICE IN NUCLEAR CONTROL FACILITIES, LIFE SUPPORT EQUIPMENT, OR ANY OTHER CRITICAL SYSTEM.

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.

MISCELLANEOUS PROVISIONS

These Terms and Conditions will be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of laws provisions of Oregon or your actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms and Conditions to be unenforceable, the remainder of these Terms and Conditions will continue in full force and effect.

These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of these Terms and Conditions will be effective only if in writing and signed by an authorized agent of Higher Function, Inc.