Last Updated: June 15, 2012
1. Eligibility. In order to use The Service, you must either be the age of majority in your jurisdiction, an emancipated minor, or possess legal parental or guardian consent, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. You represent that you meet the eligibility requirements in this Section. In any case, you affirm that you are over the age of 13, as The Service is not intended for children under 13.
3. Modification of the Terms. Company reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time for any reason, and we may notify you of such changes through any of a variety of means, including a change to the "Last Updated" date set forth above and other reasonable means to be determined at our discretion. All changes shall be effective immediately. In the event of a material change that may directly affect your account, we will notify you via the most recent e-mail address that you have provided to us in conjunction with your account. Please check these Terms periodically for changes. Your continued use of The Service after the posting of changes constitutes your binding acceptance of such changes.
4. The Service Access. Company grants you permission to use The Service as set forth in these Terms, provided that and for so long as (i) you use The Service solely for your personal or internal business use; (ii) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of The Service in any medium without Company's prior written authorization; (iii) you do not alter or modify any part of The Service other than as may be reasonably necessary to use The Service for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you otherwise fully comply with these Terms. The Service is controlled and offered by Company from its facilities in the United States of America. Company makes no representations that The Service is appropriate or available for use in other locations. If you are accessing or using The Service from other jurisdictions, you do so at your own risk and you are responsible for compliance with local law.
5. Ownership; Proprietary Rights. The Service including the content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of The Service that are provided by Company ("Company Materials") are owned and/or licensed by Company. Company Materials do not include Contributed Content (as defined below). Except as expressly authorized by Company, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of The Service or the Company Materials. Company reserves all rights not expressly granted in these Terms. You shall not acquire any right, title, or interest to the Company Materials, except for the limited rights set forth in these Terms.
6. User Content.
(a) General. The Service permits you and other Users to post or link media, text, audio and video recordings, photos, graphics, commentary or other information or content ("User Content") across the web, including without limitation to various social media outlets and via email. User Content is not controlled by Company. Company makes no representations that your User Content will become or remain available via The Service in any way and may remove your User Content in its sole discretion. YOU UNDERSTAND THAT ANY USER CONTENT THAT YOU POST VIA THE SERVICE IS MADE PUBLICLY AVAILABLE ACROSS THE WEB, INCLUDING TO USERS OF THE VARIOUS SOCIAL MEDIA OUTLETS YOU SELECT AND VIA EMAIL, AND COMPANY DOES NOT GUARANTEE ANY CONFIDENTIALITY WITH RESPECT TO ANY SUCH USER CONTENT, NOR DOES IT GUARANTEE THAT YOUR INTELLECTUAL OR PROPRIETARY RIGHTS IN SUCH USER CONTENT WILL NOT BE INFRINGED OR MISAPPROPRIATED.
(b) Grant of Rights. By submitting User Content to Company, you hereby grant Company and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, perform, and otherwise exploit your User Content in connection with The Service and Company's (and its successor's, transferees', sublicensees' and their respective affiliates') business, including without limitation for promoting and redistributing part or all of The Service (and derivative works thereof) in any media formats and through any media channels. You grant Company and its affiliates, transferees and sublicensees (and their respective affiliates) the right to use the name(s) that you submit in connection with such User Content if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. The above licenses granted by you in User Content you submit to The Service shall be perpetual and irrevocable. You understand and agree that Company retains server copies of all User Content.
(c) Credits for Links to Third Party Websites. Without limiting the generality of clause (b) above, you hereby agree and acknowledge your understanding that any User Content you contribute to The Service in the form of links to third party websites may be automatically modified such that the link would direct the user to the same webpage as the link you post, however the link will include additional or modified code whereby Company, and not you, will be credited by the operator of such third party website for directing users to such third party website via such link. By using the Service, you hereby agree to such crediting of Company for all links to third party websites you post via the Service.
(d) Your Representations and Warranties Regarding User Content. You shall be solely responsible for your own User Content and the consequences of posting such Content. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Company to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by Company and these Terms, and to grant the rights and license set forth in this Section, and (ii) your User Content, Company's use of such User Content pursuant to these Terms, and Company's exercise of the license rights set forth in this Section, do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate any applicable law or regulation.
(de) Prohibited Uses of User Content. Except as otherwise permitted by these Terms, in connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available to The Service : (i) any falsehoods or misrepresentations that could damage Company or any third party; (iii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) advertisements or solicitations of business, products, or services; or (v) any material that would be harmful to minors in any manner.
(ef) No Responsibility for User Content. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Content. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such User Content.
7. Contributed Content Disclaimer. You understand that when using The Service you may be exposed to User Content, advertising and other third party content (together, the "Contributed Content") from a variety of sources, and that you may be exposed to Contributed Content that is inaccurate, offensive, indecent, or otherwise objectionable. Company does not endorse any Contributed Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Company be liable in any way for or in connection with the Contributed Content, including, but not limited to, for any inaccuracies, errors or omissions in any Contributed Content, any intellectual property infringement with regard to any Contributed Content, or for any loss or damage of any kind incurred as a result of the use of any Contributed Content posted, emailed or otherwise displayed or transmitted through The Service.
8. Non-Monitoring of Users and Contributed Content. You understand that you, and not Company, are entirely responsible for all User Content that you upload, post, e-mail, transmit or otherwise make available through The Service. Company does not control Contributed Content posted by Users or otherwise made available by other persons or entities and does not have any obligation to monitor such Contributed Content for any purpose. If at any time Company chooses, in its sole discretion, to monitor the Contributed Content, Company nonetheless assumes no responsibility for the Contributed Content, no obligation to modify or remove any inappropriate Contributed Content, and no responsibility for the conduct of the User or other person or entity submitting any such Contributed Content. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Contributed Content, including any reliance on the accuracy, completeness, usefulness, or legality of such User Content or other Contributed Content.
9. Removal of Contributed Content. Company and its designees shall have the right (but not the obligation) in their sole discretion to refuse transmission or posting of any Contributed Content via The Service, or remove any Contributed Content that is available on The Service in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
10. Prohibited Uses of The Service.
(a) As a condition of your use of The Service, you hereby represent and warrant that you will not use The Service for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section) by these Terms.
(b) Any use by you of any of the Company Materials and The Service other than for your personal or internal business use is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of The Service, use of The Service, access to The Service, or Contributed Content obtained through The Service, for any purpose other than for your personal or internal business use.
(c) You agree not to use The Service if you do not meet the eligibility requirements described in Section 1 above.
(d) You agree not to defame, harass, abuse, threaten, stalk or defraud Users of The Service, or collect, or attempt to collect, personal information about Users or third parties without their consent.
(e) You agree not to intentionally interfere with or damage, impair or disable the operation of The Service or any User's enjoyment of it by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on The Service with the intended result of denying service to other Users.
(f) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security- related features of The Service, features that prevent or restrict the use or copying of any part of The Service, or features that enforce limitations on the use of The Service.
(g) You agree not to attempt to gain unauthorized access to The Service or any part of it, other accounts, computer systems or networks connected to The Service or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of The Service or any activities conducted through The Service.
(h) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through The Service. You agree neither to modify The Service in any manner or form (other than contributing User Content as enabled by The Service’s functionality and in accordance with these Terms), nor to use modified versions of The Service, including (without limitation) for the purpose of obtaining unauthorized access to The Service.
(i) You agree that you will not use any robot, spider, scraper, or other automated means to access The Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to The Service.
(j) You agree not to utilize framing techniques to enclose any trademark, logo, or other Company Materials without our express written consent. You agree not to use any meta tags or any other "hidden text" utilizing Company's name or trademarks without Company's express written consent.
(k) You agree not to use any Company logos, graphics, or trademarks as part of the link without our express written consent.
(l) You agree not to make unsolicited offers, advertisements, proposals, or send junk mail in connection with your use of The Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
(m) You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of The Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(n) You agree not to modify, adapt, translate, or create derivative works based upon The Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(o) You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
11. Account Information and Purchases. In order to access some features of The Service, you will have to create an account. You acknowledge, consent, and agree that Company may access, preserve and disclose your account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to any claim that User Content violates the rights of third parties; (d) provide certain customized features of The Service to you, if any; (e) respond if you contact Company for any reason; or (f) protect the rights, property, or personal safety of Company, its other Users, and the public.
Some aspects of The Service may require you to pay a fee, the details of which are available in various areas of The Service that feature the ability to purchase products, features or services. You agree to pay all fees and applicable taxes incurred by you or anyone using your account. We may revise the pricing for products, services or features offered through The Service at any time. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or products or services provided by, us, your account may be closed without warning or notice at our sole discretion. EXCEPT AS OTHERWISE SET FORTH IN ANY RETURN POLICY OR CANCELLATION POLICY APPLICABLE TO OUR FEE-BASED PRODUCTS, SERVICES OR FEATURES, YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE-BASED PRODUCTS, SERVICES OR FEATURES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
12. Password. If you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), you shall immediately notify Company. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, COMPANY OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
13. Dealings with Advertisers and other Users. Your correspondence or business dealings with, or participation in promotions of, advertisers and other Users found on or through The Service are solely between you and such advertiser or User. YOU AGREE THAT COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS OR USERS ON THE SERVICE.
14. Links and Third Party Websites. Company, Users and other third parties may provide links on The Service to other sites, including the content therein, ("Reference Sites"). Reference Sites also includes various social media outlets and other websites that you may contribute content to using The Service’s syndication features. Company has no control over such Reference Sites or their content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or other content linked to by The Service. Company provides links and the ability to contribute content to Reference Sites to you only as a convenience, and the inclusion of any link on The Service or the availability of the syndication functionality does not imply our affiliation, endorsement, or adoption of the linked Reference Site or other content or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, CONTENT, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. Our terms and policies do not govern your use of any site other than The Service. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
15. Service Availability. Company may make changes to or discontinue any of the media, web communities, products, or services available within The Service at any time, and without notice. The media, products, or services on The Service may be out of date, and Company makes no commitment to update these materials on The Service.
16. Feedback. You agree that any feedback, analysis, suggestions and comments to Company provided by you (collectively, "Feedback") will become the property of Company. IN CONSIDERATION OF COMPANY PROVIDING ACCESS TO THE SERVICE FREE OF CHARGE OR, IN THE CASE OF FEEDBACK PROVIDED USING FEATURES OF THE SERVICE FOR WHICH YOU MUST PAY A FEE, THEN AS FURTHER CONSIDERATION FOR YOUR ACCESS TO SUCH FEATURES, USER HEREBY ASSIGNS TO COMPANY ALL RIGHT, TITLE AND INTEREST, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS, IN AND TO THE FEEDBACK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USER AGREES THAT COMPANY SHALL HAVE THE PERPETUAL, IRREVOCABLE AND WORLDWIDE RIGHT TO USE, COPY, DISPLAY, PERFORM, TRANSLATE, MODIFY, LICENSE, SUBLICENSE AND OTHERWISE EXPLOIT ALL OR PART OF THE FEEDBACK OR ANY DERIVATIVE THEREOF IN ANY EMBODIMENT, MANNER OR MEDIA NOW KNOWN OR HEREAFTER DEVISED WITHOUT ANY REMUNERATION, COMPENSATION OR CREDIT TO USER. User represents and warrants that User has the right to make the foregoing assignment and to grant to Company the rights granted under this Section 16 and that any Feedback which is provided by User to Company does not infringe any third-party intellectual property rights. Notwithstanding the foregoing assignment, Company grants to you a non-exclusive, non-transferable, non-sublicensable, world-wide, perpetual and irrevocable license to use the Feedback for your own personal, non-commercial purposes that do not compete, directly or indirectly, with our use of such Feedback.
17. User Disagreements. You are solely responsible for your involvement with other Users of The Service or any Reference Sites. Company reserves the right, but has no obligation, to monitor disagreements between you and other Users. COMPANY DISCLAIMS ALL LIABILITY RELATED TO ANY USER DISAGREEMENT.
You agree that Company, in its sole discretion, may terminate any account (or any part thereof) you may have through The Service or your use of The Service, and remove and discard all or any part of your account or any User Content. You agree that your access to The Service or any account you may have or portion thereof may be terminated without prior notice, and you agree that Company shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies Company may have at law or in equity.
19. INDEMNIFICATION; HOLD HARMLESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS COMPANY, AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY'S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE SERVICE; (II) YOUR USER CONTENT, INCLUDING COMPANY'S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY COMPANY. COMPANY RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY. COMPANY WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
20. DISCLAIMERS; NO WARRANTIES.
(a) ACKNOWLEDGMENT. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 20, AND SECTIONS 21 AND 22 BELOW, THE TERM COMPANY INCLUDES COMPANY'S PARENT, SUBSIDIARY, AFFILIATED AND OTHER RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP) AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS AND SUBCONTRACTORS.
(b) NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(c) "AS IS" AND "AS AVAILABLE" AND "WITH ALL FAULTS." YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, USER CONTENT, CONTRIBUTED CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
(d) SERVICE OPERATION AND CONTRIBUTED CONTENT. COMPANY DOES NOT WARRANT THAT THE COMPANY MATERIALS, USER CONTENT, CONTRIBUTED CONTENT, THE SERVICE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(e) ACCURACY. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(f) HARM TO YOUR COMPUTER. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.
21. LIMITATION OF LIABILITY AND DAMAGES.
(a) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL COMPANY OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE, THE COMPANY MATERIALS AND USER CONTENT ON THE SERVICE OR ANY REFERENCE SITES, THE SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) LIMITATION OF DAMAGES. IN NO EVENT SHALL COMPANY’S OR ITS THIRD PARTY PARTNERS’, LICENSORS’ OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED DOLLARS (USD $100) OR ONE-HALF OF THE ANNUAL FEES PAID BY YOU (IF APPLICABLE) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE.
(c) THIRD PARTY PRODUCTS AND SERVICES. SOME USERS MAY USE THE SERVICE TO MARKET PRODUCTS AND/OR SERVICES. THE ABOVE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SUCH PRODUCTS OR SERVICES MARKETED, SOLD OR PROVIDED BY USERS, OR OTHERWISE BY THIRD PARTIES OTHER THAN COMPANY AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICE OR THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION ANY REFERENCE SITES.
22. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN.
(a) LIMITATIONS BY APPLICABLE LAW. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
(b) BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT COMPANY HAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND COMPANY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY. YOU ACKNOWLEDGE AND AGREE THAT COMPANY WOULD NOT BE ABLE TO PROVIDE THE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
23. Digital Millennium Copyright Act Compliance.
(a) Infringement Claims. If you are a copyright owner or an agent thereof, and believe that any User Content or other Contributed Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail).
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity on The Service and that is to be removed or access to which is to be disabled, including the link or URL for all such material on The Service;
(iv) Information reasonably sufficient to permit Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Company's designated Copyright Agent to receive notifications of claimed infringement is:
Matthew Michelsen, Copyright Agent, The Backplane, Inc., 119 University Avenue, Palo Alto 94301.
email: email@example.com, telephone: 858-244-6025 fax: 858-756-7330
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFIRNGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.
(b)Notice And Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below.
We may, at our discretion, deny access to The Service by, or disable and/or terminate the accounts of, Users who may be infringers.
(c) Copyright Counter-Notices. If content you posted on The Service was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:
a. To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below.
b. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
(d) Elements of Counter-Notification. To expedite our ability to process your counter- notification, please use the following format (including section numbers):
1. Identify the specific URLs of (or other information sufficient to allow us to identify) material that Company has removed or to which Company has disabled access. 2. Provide your full name, address, telephone number, email address and, if you are a registered User, the User name of your Company account. 3. Provide a statement that you consent to the jurisdiction of the Southern District of New York and the Federal District Court for the judicial district in which your address is located (if your address is outside of the U.S.A.), and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above, or an agent of such person. 4. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled." 5. Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
Copyright Agent Matthew Michelsen, The Backplane, Inc., 119 University Avenue, Palo Alto 94301.
email: firstname.lastname@example.org, telephone: 858-244-6025 fax: 858-756-7330
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on The Service. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
(e) Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on The Service is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of New York. If you do wish to file a counter-notice, you should follow the process set forth above under the heading "Elements of Counter-Notification."
(f) Disclaimer: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
(a) Notice. Company may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on The Service. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after an email is sent, unless Company is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide Company with notices only by mail to the address indicated in subsection (l) below.
(b) Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
(c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or The Service shall be filed only in the state or federal courts in and for the County of San Diego and State of California and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action.
(d) Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Company to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
(e) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
(f) Assignment. The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
(g) No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of these Terms or use of The Service. You further acknowledge that by submitting User Content or other Contributed Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Company other than pursuant to these Terms.
(h) Survival. Sections 5, 6, 7, 9, 11 (other than your duty to update account information), 13, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 will survive any termination of these Terms or your account, whether by you or by Company.
(i) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
(j) Entire Agreement. This is the entire agreement between you and Company relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any Services Agreement that you may have entered into with Company. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms made by Company as set forth in Section 3 above.
(k) CLAIMS. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(l) Disclosures. The services hereunder are offered by The Backplane, Inc., located at: 119 University Avenue, Palo Alto, CA 94301.