The following are terms of a legal agreement (“Agreement”) between you and us. These terms and conditions apply to a user (“user,” “you,” or “your”) who accesses, browses and/or otherwise uses this web site (the “Site”) and/or the services provided by the Site (“Services”). By accessing, browsing and/or otherwise using the Site, you acknowledge that you have read, understood and agreed to be bound by these terms and conditions, and to comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations. If you do not agree to all of these terms and conditions, you may not access, browse and/or use the Site. The material provided on the Site is protected by law, including, but not limited to, United States copyright law and international treaties. Please read this Agreement carefully as it governs your use of the Services and the Site. If you have any questions regarding this Agreement, or any agreement or document herein incorporated, please contact us at [email protected]. (This email address is only for usage questions, please do not send customer service questions via this address.)
This Agreement applies to your access to, and browsing and/or use of, the Site and the Services and does not alter in any way the terms and conditions of any other agreement you may have with us for products, software, services or otherwise, unless otherwise directed by us. If you breach any of these terms and conditions, your authorization to use the Site and the Services automatically terminates and you must immediately destroy any downloaded or printed Materials (as hereinafter defined) and discontinue use of any hyperlinks to the Site.
By accessing, browsing and/or using the Site and the Services, you consent to receiving electronic communications from us. You agree that all notices, agreements, disclosures, and other communications that are sent to you electronically by us shall satisfy any and all legal requirements that such communications be in writing.
We may revise this Agreement at any time without notice by updating this posting. By accessing, browsing and/or otherwise using the Site you agree to be bound by any such revisions and should therefore periodically visit the Site and page to determine the then current terms and conditions of use to which you are bound. Any new Materials, Content, Services or features on the Site shall be subject to this Agreement. The current version of this Agreement is dated June 13, 2012.
1. Copyright. All Site materials, including, without limitation, any software, data, text, photos, pictures, graphics, images, audio and video clips, logos, icons, links and other files and the selection and arrangement thereof (the “Materials”) are copyrighted Materials, ALL RIGHTS RESERVED.
2. Trademarks. The trademarks and/or trade dress, service marks, trade names, and logos (the “Marks”) used and displayed on the Site are registered and unregistered trademarks of ours, our suppliers or other third parties. In addition, the Marks include, but are not limited to, all page headers, custom graphics, button icons, and scripts, which may not be copied, imitated or used, in whole or in part, without the prior written permission of us or the owner of the Mark(s) at issue. Nothing on the Site shall be construed as granting, by implication, estoppel or otherwise any license or right to use any Marks used or displayed on the Site, without our express written permission or the express written permission of owner of the Mark(s) at issue. The misuse of the Marks displayed on the Site is strictly prohibited.
3. Materials. The Site, the Materials, the Marks, the Services, including, without limitation, any of our or our licensor’s Internet operations, design, content, hardware designs, algorithms, software (in source and object forms), user interface designs, other templates and designs, algorithms, architecture, class libraries, and documentation (both printed and electronic), know-how, good will, moral rights, trade secrets and any related intellectual property rights throughout the world in any of the foregoing, and any derivative works, improvements, enhancements or extensions thereof, are and shall remain our sole and exclusive property or the sole and exclusive property of our suppliers or other third parties.
4. Content. You understand that all postings, messages, information, data, text, files, images, photos, images, pictures, graphics, audio and video clips or other materials posted on, transmitted through, or linked on the Site (collectively, the “Content”), are the sole responsibility of the person from whom such Content originated. You understand that we do not control, and are not responsible for Content made available through the Site, and that by using the Site, you may be exposed to Content that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. You agree that you must evaluate, and bear all risks associated with the use of any Content, that you may not rely on said Content, and that under no circumstances will we be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted or otherwise made available via the Site.
There are two types of Submissions: Solicited Submissions and Unsolicited Submissions. “Solicited Submissions” means those Submissions (a) that we expressly request or enable you to provide to us via any feature or activity on the Site for our review or display and possible specifically-defined consideration or compensation (collectively, “Consideration”) (such as prizes or other value in games, sweepstakes, contests and promotions); and (b) that you Distribute on or through the Site for which you do not seek Consideration. “Unsolicited Submissions” are any and all Submissions that do not fall within subparagraphs (a) or (b) of this paragraph.
Our company policy does not allow us to accept or consider Unsolicited Submissions so please do not Distribute Unsolicited Submissions on or through the Sites. We want to avoid the possibility of future misunderstandings when projects developed by us or under our direction might seem to others to be similar to their own creative work. We therefore ask that you not Distribute any Unsolicited Submission on or through the Site. In any event, you agree that any Submissions you make through the Site is not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type, other than any stated Consideration.
6. Licenses and Representations. You hereby grant us and our licensees, distributors, agents, representatives and other authorized users, a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify (including removing lyrics and music from any Submission or substituting the lyrics and music in any Submission with music and lyrics selected by us), create derivative works based upon, perform and otherwise exploit such Submissions, in whole or in part, in all media formats and channels now known or hereafter devised (including on the Site, on third party web sites, on our cable network, on our broadband and wireless platforms, products and services, and on physical media) for any and all purposes including entertainment, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the “Submissions License”).
To the extent that any Submissions you Distribute on or through the Site contain original songs or recordings, you hereby represent that you are a member of SESAC, BMI, ASCAP, or any other applicable performing rights society and that all musical compositions (including lyrics) and sound recordings contained in such Submissions are available for licensing to us (and our licensees, distributors, agents, representatives and other authorized users) directly from such societies. Notwithstanding the foregoing, regardless of whether you are a member of any performing rights society, you grant the Submissions License with respect to each and every musical composition (including lyrics) and sound recordings contained in such Submissions.
To the extent that we solicit Submissions through features or activities on or through the Site (including games, sweepstakes, contests, and promotions) that require the use of our copyrighted works (in whole or in part), we hereby grant you a non-exclusive license to create a derivative work using our copyrighted works (in whole or in part) as required (but only as required, and only for the purpose of creating your Submissions in response to our solicitation); provided however, that such license shall be conditioned upon your assignment of all rights in the work you create to us. If such rights are not assigned to us, your license to create derivative works using our copyrighted works (in whole or in part) shall be null and void. You agree to the foregoing grant of rights, consents, agreements and assignments whether or not your Submissions are used by us.
To the extent any “moral rights,” “ancillary rights,” or similar rights in or to the Submissions exist and are not exclusively owned by us, you agree not to enforce any such rights as to us or our licensees, distributors, agents, representatives and other authorized users, and you shall procure the same agreement not to enforce from any others who may possess such rights.
Without limiting the scope of the Submissions License or any future grant of rights, consents, agreements, assignments, and waivers you may make with respect to Submissions, you hereby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you with respect to Submissions submitted by you to us.
7. Rules of Conduct. The following Rules of Conduct apply to the Site. By using the Site, you agree that you will not Distribute any Submission that:
a.(i) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (ii) is bigoted, hateful, or racially or otherwise offensive; (iii) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (iv) otherwise harms or can reasonably be expected to harm any person or entity;
b.is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a Submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
c.infringes or violates any right of a third party including: (i) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (ii) right of privacy (specifically, you must not distribute another person’s personal information of any kind without their express permission) or publicity; or (iii) any confidentiality obligation;
d.is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations); or,
e.is antisocial, disruptive, or destructive, including “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet.
8. Grant of License. We hereby grant to you a limited, worldwide, non-exclusive, non-transferable, non-sublicenseable, and revocable license to use the Services and/or the Materials for personal, noncommercial use only, subject to the restrictions in this Agreement.
9. License Restrictions. You acknowledge and agree that you do not acquire any ownership rights by using the Site, the Services, the Marks or the Materials. You may not: (a) copy the Services or any software or programming related thereto; (b) modify, distribute, copy, reproduce, display, republish, download, upload or transmit any Materials on the Site for commercial use, or otherwise, without our prior written approval, (c) “frame” or “mirror” any Materials contained on the Site on any other server without the prior written permission from us, (d) permit other individuals or companies to use the Services and/or the Materials, (e) modify, translate, reverse engineer, decompile, disassemble or create derivative works based upon the Site, Materials, Services, or any software or programming related thereto, (f) rent, lease, transfer, resell and/or or otherwise transfer rights to the Marks, the Materials or the Services, or (g) delete or write over any portion of any software relating in any manner to the Site or the Services. You also agree that you shall only use the Site, the Services, the Marks and the Materials in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, and that your use of the Site, the Services, the Marks and the Materials is subject to all applicable local, state, national and international laws and regulations. You agree that your use of the Site and the Services shall not violate or infringe the rights of any third party. Any forbidden use shall immediately and automatically terminate your license to use the Services and the Materials without notice. Any unauthorized use of the Services, the Marks and/or the Materials contained on the Site may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes. We reserve any rights not expressly granted herein. You shall be solely responsible for hardware and interconnections and telecommunications to access the Services.
10. Additional Use Restrictions. You may only use the Site, the Services, the Marks and the Materials in a manner that, in our sole judgment, is consistent with the intended purposes thereof. If you are unsure of whether any contemplated use or action is permitted, please contact us at [email protected]. By way of example, and not limitation, you agree not to:
a. Use the Site for any commercial purpose, such as conducting sales of tickets, merchandise or services of any kind. Without limiting the foregoing, you may not resell or link to other sites for the purpose of selling tickets of any kind.
b. Use the Site or the Services if you are temporarily or indefinitely suspended from the Site.
c. Access, or attempt to access, other areas of our computer system or other computer systems through the Site for any purposes.
d. Use any robot, spider, other automatic device, or manual process to “screen scrape,” monitor, “mine,” or copy the Web pages on the Site or the content contained hereon without our prior, express, and written permission.
e. Use any device, software or routine to interfere, or attempt to interfere, with the proper working of the Site or take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
f. Upload, post, email, or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racially, ethnically or otherwise objectionable, or any other Content that could give rise to any civil or criminal liability under both domestic and international law. Pornography and merchandising related to pornography are prohibited under all Services, including providing links to pornographic content elsewhere.
g. Harm, or attempt to harm, minors in any way.
h. Impersonate any person, including, but not limited to, the Site owner, a company official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person.
i. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services or develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page).
j. Upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
k. Upload, post, email or otherwise transmit any Content or materials that infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party.
l. Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
m. Upload, post, email or otherwise transmit any materials that contain software viruses or any other computer code, files or programs or other harmful component, designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, tamper with, impair or damages the Site or any connected network.
n. Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Services are able to type, or otherwise act in a manner that negatively affects other users’ abilities to engage in real time exchanges.
o. Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services.
p. Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law. You shall be responsible for determining what laws or regulations are applicable to your use of the Services.
q. “Stalk” or otherwise harass another.
r. Promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating “crush” sites.
s. Effectuate security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access.
t. Harvest or collect information about other Site users without their express consent.
u. Restrict or inhibit any other visitor from using the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site.
v. Express or imply that any statements you make are endorsed by Company without Company’s prior written consent.
w. Assist any third party in engaging in any activity prohibited by this Agreement.
x. Provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
11. Monitoring the Site. We have the right, but not the obligation, to monitor the Site, and as a general practice we do not monitor the Site or any Content posted hereon or otherwise submitted hereto. Notwithstanding the foregoing, we reserve the right, but not the obligation, to refuse to post or to remove any Content, or any information or materials from any portion of the Site, in whole or in part, that, in our sole discretion, are unacceptable, undesirable, inappropriate or in violation of this Agreement. You acknowledge that we may establish general practices and limits concerning use of the Site, including without limitation, limiting the maximum number of days that message board postings or other uploaded Content will be retained by the Site, the maximum disk space that will be allotted on our servers on your behalf, the maximum length of time that an IP address will be assigned for your use, the maximum throughput of traffic from the Internet or associated service, and the maximum number of times (and the maximum duration for which) you may access the Site in a given period of time. You agree that we have no responsibility or liability for: (a) the deletion of Content, (b) failure to store or to deliver any messages and other communications, (c) the modification or malformation of data communications over the Site, or (d) other Content maintained or transmitted by the Site. Please remember that the Site and any chat rooms, message boards, or other such forums or communities are merely provided as venues for users to upload, use, exchange and edit Content. We are not responsible for any user’s Content that may appear on the Site; nor are we responsible for or involved in reviewing, editing, or removing any Content on the Site. Also we do not have any control over and does not guarantee the quality, applicability or accuracy of any Content. We do not assume any liability associated with a user’s use of the Services, the Materials, or the Site, or anything contained hereon, including, without limitation, intellectual property infringement relating to or concerning any Content. Please make sure that the Content you provide conforms to all applicable intellectual property right laws.
12. Hyperlinks. You are granted a limited, nonexclusive, and revocable right to create a “hypertext” link to the Site, provided that such link is to the entry page of the Site and does not portray us or the Site owner, or any of our or the Site owner’s products or services, in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time for any reason whatsoever. You may not use framing techniques to enclose any of our Marks or other proprietary information including the images found at the Site, the content of any text or the layout/design of any page or any form contained on a page without our express written consent. Links to third party sites on the Site are provided solely as convenience to you. If you use these links, you will leave the Site. We have not reviewed all of these third party sites and do not control, and is not responsible for, any of these sites or their availability, content, or policies, including, without limitation, privacy policies or lack thereof. We do not endorse or make any representations about third party sites or any information, software or other products or materials found there, or any results that may be obtained from using them. If you decide to access any of the third party sites linked to the Site, you do so entirely at your own risk. You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with the use of or reliance on any such third party sites.
13. Downloadable Materials. Any Materials that are made available to download from the Site are our copyrighted work and/or copyrighted work of or suppliers or other third parties. Without limiting the foregoing, copying or reproduction of the Materials to any other server or location for further reproduction or redistribution is expressly prohibited.
14. Your Information. You agree to (i) provide true, accurate, current and complete transactional information and any information about you and (ii) maintain and promptly update such information to keep it true, accurate, current and complete. You agree to update such information by notifying us by email of any changes at [email protected].
15. User ID and Password. You will receive a user ID and password during the registration process. You are fully responsible for maintaining the confidentiality of your user ID and password and all activities that occur under your user ID and password as well as ensuring that you exit from your account at the end of each session. Your user ID and password are for your use only, and you may not transfer your user ID, account, or password to another party without our consent. You agree to immediately notify us by email at [email protected] of any unauthorized use of your ID, password or account or any other breach of security.
16. Notices. Unless otherwise provided herein, notices given by us to you will be given by email or by conventional mail. Notices will be sent to the email address or mailing address you provide to us as part of the registration process, or to an updated address that you provide to us via notice consistent with this section. Notices given by you to us must be given by email to [email protected] or such updated address(es) as we may provide to you consistent with this notice provision. Notwithstanding anything herein to the contrary, it is your sole responsibility to update your address for notices hereunder, and notices sent to the email or conventional mailing address last provided by you to us shall be valid and binding on you regardless of whether such address has been changed, canceled, has expired, has been terminated, or otherwise becomes inoperative.
17. Interstate Nature of Using the Site and Services. When you register with us, you acknowledge that in using the Services to send electronic communications, you will be causing communications to be sent through our computer networks, portions of which may be located in other locations in the United States and portions of which may be located abroad. As a result, and also as a result of our network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless or where you are physically located at the time of transmission. Accordingly, by agreeing to this Agreement, you acknowledge that use of the Services results in interstate data transmissions.
18. Fees. All fees, if any, shall be at the then current prices. Upon registering for use of the Services, you must choose to pay either by direct charge to a credit or a debit card, and, in doing so, you authorize us to charge your credit or debit card to pay for any charges that may apply to your account as they accrue on a monthly or yearly recurring basis, as applicable. You must notify us of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit us from charging your account. Failure to make any payment as set forth herein shall be deemed to be a material breach of this Agreement and shall be sufficient cause for the immediate termination of this Agreement by us. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys’ fees, court costs and collection agency fees. All charges shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed, other than taxes based on our net income.
19. Modification or Cancellation of Services. We may, in its sole discretion and at any time, modify, cancel or suspend the Services, or any part thereof, without cause and without notice. You agree that we shall not be liable to you or to any third party for any immaterial modification of the Services or any modification of the Services which, in our sole discretion, constitutes an improvement. Upon cancellation of the Services, your right to use the Services stops right away. Once the Services are cancelled or suspended, any data or Content you have stored on the Site via the Services may not be retrieved later. Our cancellation of the Services will not alter your obligation to pay all charges made to your billing account, provided, however, if we cancel the Services in their entirety without cause, or materially modifies the Services in such a way that compromises the quality or quantity of the Services provided, then we will refund to you on a pro-rata basis the amount of payments that you have made corresponding to the portion of your Services remaining right before the cancellation or the material and adverse modification.
20. Security. You understand and acknowledge that no data transmission over the Internet can be guaranteed to be 100% secure and we cannot guarantee that any personal information you submit to us will be free from unauthorized third party intrusion. You understand and agree that all information you submit to us is done so at your own risk.
21. Termination. You agree that we may, under certain circumstances and without prior notice, immediately terminate your account, any associated email address, and access to the Services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services. Termination of your account includes (x) removal of access to all offerings within the Services, (y) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (z) barring of further use of the Services. Further, you agree that terminations for shall be made in our sole discretion and that, except as explicitly provided herein, we shall not be liable to you or any third party for any termination of your account, any associated email address, or access to the Services. Upon any termination of this Agreement, you shall immediately discontinue use of the Services. The making of all payments due hereunder and Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, and 31 shall survive the termination, cancellation, or discontinuation of this Agreement.
22. DISCLAIMER OF WARRANTIES. YOU AGREE THAT USE OF THE SERVICES AND THE SITE IS AT YOUR SOLE RISK. THE SERVICES AND THE SITE, INCLUDING BUT NOT LIMITED TO ALL SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND COMPANY (INCLUDING, WITHOUT LIMITATION, ITS MEMBERS, MANAGERS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, INDEPENDENT CONSULTANTS, SUBCONTRACTORS, DISTRIBUTORS, OR ANY CLIENT OF OURS (COLLECTIVELY, “COMPANY THIRD PARTIES”)) ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY OF YOUR COMMUNICATIONS, DATA, CONTENT, OR PERSONALIZATION SETTINGS. TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, WE AND COMPANY THIRD PARTIES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, QUIET ENJOYMENT, TITLE, MERCHANTABILITY OF COMPUTER PROGRAMS AND INFORMATIONAL CONTENT. NEITHER COMPANY NOR ANY COMPANY THIRD PARTIES MAKE ANY WARRANTY THAT THE SITE, THE SOFTWARE, THE MATERIALS, THE PRODUCTS, OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR OR VIRUS FREE OR THAT ANY DEFECTS IN THE SITE, THE SOFTWARE, THE MATERIALS, THE PRODUCTS, OR THE SERVICES WILL BE CORRECTED; NOR DO WE OR ANY COMPANY THIRD PARTIES MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM, OR THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH, THE USE OF THE SERVICES OR THE SITE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE AND THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO A COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS CONTAINED HEREIN MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
23. LIMITATION OF LIABILITY. IN NO EVENT SHALL WE OR ANY COMPANY THIRD PARTIES BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, DAMAGES RESULTING FROM LOST PROFITS, LOST OR DAMAGED DATA OR BUSINESS INTERRUPTION ARISING OUT OF OR RELATING TO THE USE, OR INABILITY TO USE, THE SERVICES, THE SITE, ANY WEBSITES LINKED TO THE SITE, THE MATERIALS, SOFTWARE OR OTHER INFORMATION CONTAINED IN ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACTS, STATUTES, REGULATIONS, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE MATERIALS OR INFORMATION FROM THE SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL AND AGGREGATE LIABILITY OF ANY PARTY UNDER THIS AGREEMENT FOR ANY CAUSE OF ACTION OR REASON WHATSOEVER EXCEED $100.00 OR THE TOTAL FEES YOU PAID TO US IN DURING THE 3 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, WHICHEVER IS GREATER. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS TO DISCONTINUE THE USE OF THE SERVICES. THE LIABILITY OF ANY PARTY UNDER THIS AGREEMENT SHALL BE CUMULATIVE AND NOT PER INCIDENT.
24. Indemnification & Release. You agree to notify us of, and indemnify, defend, and hold us and their directors, officers, employees, consultants, agents, and other representatives, harmless from and against, any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement; (b) any allegation that any Content or materials you submit or transmit to the Site, or to other websites, infringe or otherwise violate the copyright, trademark, trade secret, or other intellectual property or other rights of any third party; and/or (c) your activities in connection with the Site and any Services. In addition, if you have a dispute with one or more users, you agree to release us (and our members, managers, officers, directors, agents, assigns, and employees) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of, or in connection with, any such disputes. If you are a California resident, you hereby agree to waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know 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.”
25. Force Majeure. We shall not be liable to you or any third party for failure or delay in performing our obligations hereunder if such failure or delay is due to circumstances beyond our reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, terrorism, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Site.
26. Merchandise. Any products, merchandise, or goods that are purchased from the Site are made according to a shipment contract whereby risk of loss and title for such products, merchandise, or goods is passed to you upon delivery by us (or any agent, subcontractor, or other third party working on our behalf) to its carrier. While we and our affiliates strive to be as accurate as possible, we and our affiliates do not warrant that product descriptions or other related content are accurate, complete, reliable, current, or error-free. For any products, merchandise, or goods that you purchase from the Site which are not as they were described on the Site, your complete and sole remedy is to return the item unused to us (or a designated third party) for a full refund (excluding shipping and handling fees).
27. No Right of Survivorship and Non-Transferability. You agree that your account is non-transferable and any rights to your user ID, or any Content or other materials within your account, terminate upon your death.
28. Notice and Procedure for Making Claims of Copyright or Intellectual Property Infringement. We respect the intellectual property of others, and we ask our Users to do the same. We may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide us with the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of where the material that you claim is infringing is located on the site;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
f. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. We may be reached for notice of claims of copyright or other intellectual property infringement can be reached as follows:
By email: [email protected]
29. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site, the Services, or this Agreement (or any other agreement incorporated herein), must be filed within one (1) year after such claim or cause of action arose or forever be barred.
30. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia notwithstanding any conflict of laws provisions. You irrevocably and unconditionally: (i) consent to submit to the sole and exclusive venue and the sole and exclusive jurisdiction of the state and federal courts of Fulton County, Georgia (the “Georgia Courts”) for any litigation or controversy arising out of or relating to this Agreement, (ii) agree not to commence any litigation arising out of or relating to this Agreement except in the Georgia Courts and (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum.
31. General. If any provision(s) of this Agreement is(are) held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Any failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing. By agreeing to the terms set forth in this Agreement, you agree to waive any right you may have to a jury trial and/or to take part in any class action lawsuits. The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance. This Agreement may be assigned in whole or in part by us. This Agreement may not be assigned in any manner by you without the express, our prior written permission. There are no third party beneficiaries to this Agreement. This Agreement contains the entire understanding of the parties regarding the subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties regarding the subject matter.