Effective as of 9.27.2019
The Company Site and the Company Services are intended solely for your personal and non-commercial use. Company may change, suspend or discontinue the Company Site or Company Services (or any feature thereof) at any time with or without notice to you. Company may also impose limits on certain features and services offered on the Company Site or the Company Services or restrict your access to parts or all of the Company Site or the Company Services without notice or liability. You acknowledge that from time to time the Company Site or the Company Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company.
Unless terminated by Company in its sole discretion, this Agreement remains in full force and effect while you use the Company Services. Company may terminate your account and/or access to the Company Services at any time, for any or no reason, with or without prior notice or explanation, and shall have no liability to you for such termination. Even after your user account or access to the Company Services is terminated by you or by Company, this Agreement will remain in effect with respect to your past and future use of the Company Sites or the Company Services. Any rights to your account terminate upon your death.
Registration and Security
You take full responsibility for your access to and participation on the Company Site and use of the Company Services. As a condition of using certain Company Services, you may be required to register on the Company Site and/or select a username and password. All registration information you submit to create an account must be accurate and kept up to date. Your failure to do so will constitute a breach of the Agreement, which may result in immediate termination of your account. You may not (i) select or use as a username a name of another person with the intent to impersonate that person; or (ii) use as a username a name subject to any rights of another person without appropriate authorization. Company reserves the right to refuse registration of, or cancel, a username, in its sole discretion. If we cancel your registration, you agree that you will not create another one or otherwise try to access the Company Site or the Company Services without our permission. You agree not to sell, transfer or assign your registration or any registration rights. It is your responsibility to notify us of any changes in such information, including but not limited to your contact information.
You are responsible for maintaining the confidentiality of your password and are responsible for all use of your account. It is therefore critical that you do not share your password with anyone. You agree not to use the account, username, email address or password of another member or subscriber at any time and not to allow any other person to use your account. You agree to notify Company immediately if you suspect any unauthorized use of, or access to, your account or password.
Right to Access and Use Company Site and Company Services
The Company Site and Company Services are offered for your personal use only and may not be used for commercial purposes. Company hereby grants you a limited, revocable, nonsublicensable license to access and display or perform the Company Site and Company Services solely for your personal, non-commercial use in connection with using the Company Site and Company Services.
Except as explicitly and expressly permitted by the Company or by the limited license set forth above, you are strictly prohibited from creating works or materials that derive from or are based on the Company Content. This prohibition applies regardless of whether such derivative works or materials are sold, bartered or given away. Also, you may not either directly or through the use of any device, software, internet site, web-based service or other means, remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notice marked on the Content contained in the Company Site or Company Services or any digital rights management mechanism, device, or other content protection, copy control or access control measure associated with the Content contained in the Company Site or the Company Services, including geo-filtering mechanisms. Except as necessary in order to refer to the Company, its products and services in a purely descriptive capacity, you are expressly prohibited from using any Company Content in any manner.
You may not, without the Company’s written permission, “mirror” any Content contained on or in the Company Site or the Company Services. You may not use the Company Site or the Company Services for any purpose that is unlawful or prohibited by the Agreement. You may not use the Company Site or the Company Services in any manner that could damage, disable, overburden, or impair the Company Site or the Company Services, or interfere with any other party’s use and enjoyment of the Company Site or the Company Services. You may not attempt to gain unauthorized access to the Company Site or the Company Services through hacking, password mining or any other means. Company reserves the right, in its sole discretion, to terminate your access to the Company Site or the Company Services, or any portion thereof, at any time, for any reason or for no reason at all, without prior notice or any notice.
In using the Company Site or Company Services, you also agree not to:
You acknowledge that Company reserves the right to charge fees for any portion of the Company Site or the Company Services. The Company will provide you with advance notice of any such fees, including any change in the amount of such fees, and a way to cancel your account in the event you do not wish to pay the modified fee.
Terms of Sale
Your access to, purchase and uses of certain Company Services may require you to accept additional terms and conditions applicable to such Company Services (“Terms of Sale”), in addition to this Agreement, and may require you to download software or Content (as defined below). In the event of a conflict between any such additional terms and this Agreement, such additional terms will prevail.
Promotions, Contests and Sweepstakes
From time to time, we make you aware of certain Company or third-party related promotions, contests and sweepstakes or other promotions. All such contests, sweepstakes and promotions are subject to the Official Rules or terms and conditions for such promotions, contests and sweepstakes and all related applicable laws, regulations and statutes.
Intellectual Property Rights
All right, title and interest in the Company Site and the Company Services, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to Company or its licensors, and you shall have no rights whatsoever in any of the foregoing. You acknowledge that the Company Site and the Company Services constitute a valuable trade secret and/or are the confidential information of Company or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Company Site or the Company Services, in whole or in part. The Company Site and Company Services contain information, text, files, images, videos, sounds, musical works, works of authorship, software, applications, product names, company names, trade names, logos, designs, and any other materials or content (collectively, “Content“) of Company, its licensors, or assignors (“Company Content“), as well as Content provided by users or other third parties. Content contained in the Company Site and Company Services is protected by copyright, trademark, patent, trade secret and other laws and, as between you and Company, Company, its licensors, or its assignors, own and retain all rights in the Company Content. Except as provided in this Agreement or as explicitly allowed on the Company Site or Company Services, you may not copy, download, stream, capture, reproduce, duplicate, archive, upload, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, display, sell, frame or deep-link, make available, or otherwise use any Content contained in the Company Site or Company Services. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to this Agreement may cause Company and its licensors irreparable injury, which may not be remedied at law, and you agree that Company and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
If you send or transmit any communications, comments, questions, ideas, suggestions, or related materials to Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Company Site, Company Services or any part thereof, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Company, the Company logo, and other Company marks, graphics, logos, scripts, and sounds are trademarks of Company. Nothing contained on the Company Site shall be construed as granting any right to make commercial use of any Company trademarks without prior written permission.
Company respects the intellectual property of others and requires that our users do the same. Company has a policy that provides for the termination in appropriate circumstances of subscribers and account holders of Company Services who are repeat infringers. Company also reserves the right to remove or disable access to any transmission of Content that infringes the copyright of any person under the laws of the United States upon receipt of a notice that substantially complies with the requirements of 17 U.S.C. § 512(c)(3) as set forth above.
If you believe that any material residing on or linked to from the Company Site or the Company Services infringes your copyright, you must send Company’s designated Copyright Agent a written notification of claimed infringement that contains substantially all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Company Site or the Company Services (such as the URL(s) of the claimed infringing material); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and an email address; (d) 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; (e) a statement by you that the above information in your notification is accurate and a statement by you, made under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner’s behalf; and (f) your physical or electronic signature. Company’s Copyright Agent for notification of claimed infringement can be reached at: DCMA Designated Agent, 495 Mansfield Avenue, Pittsburgh, PA 15205, Phone: 877-994-3822, Email: firstname.lastname@example.org
If you posted material to the Company Site or the Company Services that Company removed due to a notice of claimed infringement from a copyright owner, Company will take reasonable steps promptly to notify you that the material has been removed or disabled. This notice may be by means of a general notice on the Company Sites or by written or electronic communication to such address(es) you have provided to Company, if any. You may provide counter-notification in response to such notice in a written communication that includes substantially all of the following: (i) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (ii) a statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iii) your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which Company may be found, and that you will accept service of process from the person who provided notification requesting the removal or disabling of access to the material or such person’s agent; and (iv) your physical or electronic signature.
Please note that, under 17 U.S.C. §512(f), any person who knowingly makes material misrepresentations in a notification of claimed infringement or any counter-notification may be liable for damages.
You understand that you are responsible for all Content that you submit, post, upload, transmit, email or otherwise make available on the Company Sites or on, through or in connection with the Company Site or the Company Services (collectively, “User Content“). You represent and warrant that: (i) you own the User Content submitted by you on, through or in connection with the Company Site or the Company Services, or otherwise have the right to grant the license set forth in this Section, and (ii) the transmission of User Content by you on, through or in connection with the Company Site or the Company Services and Third-Party Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content submitted by you on or through the Company Site or the Company Services or Third-Party Services. Additionally, you acknowledge that you have no expectation of privacy in or confidentiality with respect to your User Content. Accordingly, please choose User Content carefully.
Company reserves the right, but disclaims any obligation or responsibility, to prevent you from posting User Content to any Company Sites or on, through or in connection with the Company Site or the Company Services and to restrict or remove your User Content from a Company Site or on, through or in connection with the Company Site or the Company Services or refuse to include your User Content in a Company Site or on, through or in connection with the Company Site or the Company Services for any reason at any time, in Company’s sole discretion and without notice to you.
You understand that Company does not control the User Content posted by users via the Company Site or the Company Services and, as such, you understand you may be exposed to inaccurate or otherwise objectionable User Content. Company assumes no responsibility or liability for this type of Content. Company assumes no responsibility for monitoring the Company Site or the Company Services for inappropriate User Content or user conduct. If at any time, Company chooses in its sole discretion to monitor the Company Site or the Company Services, Company nonetheless assumes no responsibility for Content other than Company Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of any user.
By posting or transmitting any User Content on, through or in connection with the Company Site or the Company Services, you hereby grant to Company and licensees, assignees, and users of the Company Site and Company Services a worldwide, perpetual, irrevocable, non-exclusive, fully-paid and royalty-free, freely sublicensable, transferable (in whole or in part) right (including any moral rights) and license to use, modify, excerpt, adapt, publish, translate, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, sublicense, and distribute such User Content, including your name, voice, likeness and other personally identifiable information to the extent that such is contained in User Content, anywhere, in any form and on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, trade or any non-commercial or commercial purposes. Additionally, Company is free to use any ideas, concepts, know-how, or techniques contained within such User Content for any purpose including, but not limited to, developing, manufacturing, marketing and providing commercial products and services, including Company Services. Company’s use of such User Content shall not require any further notice or attribution to you and such use shall be without the requirement of any permission from or any payment to you or any other person or entity. You hereby appoint Company as your agent with full authority to execute any document or take any action Company may consider appropriate in order to confirm the rights granted by you to Company in this Agreement.
Third-Party Services and Links
Company makes no representation or warranty as to the accuracy or fitness for use of any offers, including, but not limited to, coupons, rebates, discounts, etc. posted via the Company Site or the Company Services (“Coupons”) or that any Third-Party Services will honor or acknowledge any such Coupons. Company is not responsible for providing any value for any Coupons. Company is not responsible for the change of information at Third-Party Services, including, but not limited to, rebate information, pricing, availability or fitness for use. You understand that Company does not and cannot review all material made available through websites linked or linking to any part of the Company Site or the Company Services.
You are solely responsible for your interactions with other users of the Company Sites and the Company Services, providers of Third-Party Services or any other parties with whom you interact on, through or in connection with the Company Site or the Company Services. Company reserves the right, but has no obligation, to become involved in any way with any disputes between you and such parties.
THE COMPANY SITE AND THE COMPANY SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND COMPANY DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE COMPANY SITE OR THE COMPANY SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS 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, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY MAKES NO WARRANTY THAT YOUR USE OF THE COMPANY SITE OR THE COMPANY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE COMPANY SITE OR THE COMPANY SERVICES WILL BE CORRECTED, THAT THE COMPANY SITE OR THE COMPANY SERVICES OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE COMPANY SITE, COMPANY SERVICES OR THIRD-PARTY SERVICES WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE COMPANY SITE OR THE COMPANY SERVICES, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE COMPANY SITE OR THE COMPANY SERVICES, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE COMPANY SITE OR THE COMPANY SERVICES, ANY USER CONTENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE COMPANY SITE OR THE COMPANY SERVICES, OR THE CONDUCT OF ANY USERS OF THE COMPANY SITE OR THE COMPANY SERVICES, WHETHER ONLINE OR OFFLINE. YOUR USE OF USER CONTENT, THIRD-PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE COMPANY SITE OR THE COMPANY SERVICES, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE COMPANY SITE OR THE COMPANY SERVICES.
Limitation on Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER COMPANY NOR ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS OR ASSIGNS, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, MEMBERS AND DIRECTORS WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, LOST PROFITS AND ANY OTHER DAMAGES ARISING OUT OF OR RESULTING IN ANY WAY FROM OR IN CONNECTION WITH THE COMPANY SITE OR THE COMPANY SERVICES EVEN IF COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE COMPANY SITE OR THE COMPANY SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE SUM OF USD$100.00, OR IF GREATER, THE AMOUNT PAID BY YOU TO COMPANY FOR THE COMPANY SITE OR THE COMPANY SERVICES DURING THE TERM OF YOUR USE OF THE COMPANY SITE OR THE COMPANY SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF COMPANY’S ACTS OR OMISSIONS OR YOUR USE OF THE COMPANY SITES OR THE COMPANY SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE COMPANY SITES OR THE COMPANY SERVICES.
Company makes no representation or warranty whatsoever regarding the completeness, accuracy, currency or adequacy of any information, facts, views, opinions, statements or recommendations contained on the Company Site or the Company Services and/or the Content. Reference to any product, process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by Company. Views and opinions of users of the Company Site or the Company Services do not necessarily state or reflect those of Company.
United States Jurisdiction
Company provides the Company Site and the Company Services in the United States of America. Company does not represent that the Company Content. Company Site or the Company Services are appropriate (or, in some cases, available) for use in other locations. If you use the Company Sites or the Company Services from a jurisdiction other than the United States, you agree that you do so of your own initiative, and you are responsible for complying with local laws as applicable to your use of the Company Sites or the Company Services.
Not all of the Company Sites or Company Services are available worldwide or nationwide, and Company makes no representation that you will be able to obtain any Company Service in any particular jurisdiction, either within or outside of the United States.
The Agreement will be governed by, and construed in accordance with, the laws of the State of California, without regard to its conflict of law provisions.
You and Company agree to submit to the exclusive jurisdiction and venue of Alameda County Superior Court and in the United States District Court of the Northern District of California to resolve any Dispute arising out of the Agreement, the Company Site or the Company Services.
SUBJECT TO APPLICABLE LAW, YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE COMPANY SITES OR THE COMPANY SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
You agree to indemnify and hold Company and its subsidiaries and affiliates and their respective subcontractors and other partners, and each of their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable attorneys’ fees, made by any third party due to or arising out of or in connection with YOUR BREACH OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER; YOUR VIOLATION OF THIS AGREEMENT OF USE OR ANY APPLICABLE LAW; YOUR USE OF THE COMPANY SITE OR THE COMPANY SERVICES AND/OR THE CONTENT IN VIOLATION OF THIS AGREEMENT; INFORMATION OR CONTENT POSTED OR TRANSMITTED THROUGH YOUR AUTHORIZED DEVICE OR ACCOUNT, EVEN IF NOT SUBMITTED BY YOU, THAT INFRINGES ANY COPYRIGHT, TRADEMARK, TRADE SECRET, TRADE DRESS, PATENT, PUBLICITY, PRIVACY OR OTHER RIGHT OF ANY PERSON OR ENTITY OR DEFAMES ANY PERSON OR ENTITY; AND ANY MISREPRESENTATION MADE BY YOU. YOU WILL COOPERATE AS FULLY AND AS REASONABLY REQUIRED IN COMPANY’S DEFENSE OF ANY CLAIM. COMPANY RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND YOU SHALL NOT IN ANY EVENT SETTLE ANY SUCH MATTER WITHOUT THE WRITTEN CONSENT OF COMPANY.
This Agreement, together with any terms and conditions incorporated herein or referenced herein constitute the entire agreement between you and us with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements (written or oral).
Should any part or provision of this Agreement be found by a court of competent jurisdiction to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; if a court finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.