TERMS AND CONDITIONS OF WEBSITE USE
Effective Date: April 1, 2016
The Website (defined below) is provided by Scitent, Inc. (collectively, “Company“, “we“, “our“, or “us“). These “Terms and Conditions of Website Use” (this “User Agreement” or “Agreement”) govern your use of the Website, regardless of how you access or use it. By “Website“, we mean the Internet domain address within which this User Agreement is posted and all features, applications, content, and downloads that are operated by us and that are available through or interact with it, and/or post links to this User Agreement.
IF YOU’RE UNDER THE AGE OF MAJORITY (which is 18 years old in most states), then your parent or guardian may be liable for some or all of your activities on the Website. Because of this, and because it’s prudent for your parent or guardian to be aware of your activities, including the websites that you visit, you should make your parent or guardian aware that you are using the Website – as this User Agreement and your use of the Website affect their legal rights and obligations.
IF YOU WANT TO USE THIS WEBSITE, then carefully read this User Agreement, as it constitutes a written agreement between you and COMPANY and it affects your legal rights and obligations.
- Each time you access and/or use the Website (other than to simply read this User Agreement), you agree to be bound by and comply with all of the terms of this User Agreement and any Additional Terms (defined below). Therefore, do not use the Website if you do not agree to all of the terms of this User Agreement and any Additional Terms.
- The business realities associated with operating the Website are such that, without the limitations that are set forth in this User Agreement — such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes — COMPANY would not make the Website available to you.
THIS AGREEMENT IS A BINDING LEGAL AGREEMENT BETWEEN SCITENT, INC. (“COMPANY”), WITH HEADQUARTERS AT CHARLOTTESVILLE, VA, AND “YOU” (“YOU” OR “YOUR”), THE INDIVIDUAL USER OF TMCIGLOBAL.ORG “WEBSITE” OR WHO HAS DOWNLOADED, INSTALLED, ACCESSED, USED, OR SUBSCRIBED TO: ANY COMPANY SOFTWARE OR APPLICATIONS (“SOFTWARE”), PRODUCTS, SUBSCRIPTIONS, MEMBERSHIPS OR SERVICES (ALL OF THE FOREGOING COLLECTIVELY “SERVICES”) OFFERED OR PROVIDED BY COMPANY. THE TERMS AND CONDITIONS OF THIS AGREEMENT GOVERN THE USE OF THIS WEBSITE AS WELL AS ANY SERVICES OFFERED OR PROVIDED BY COMPANY. PLEASE REVIEW THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE WEBSITE OR DOWNLOADING, INSTALLING OR USING ANY PART OR PORTION OF ANY PRODUCT OR SERVICE.
FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS:
1) GRANT OF LICENSE
1.1 For good and valuable consideration, COMPANY grants You a single, non-exclusive, non-transferable, non-sublicensable, revocable and limited personal non-commercial license to access the Website and use the Services and to receive any data, information, and services provided by the Services. The Services provided by COMPANY are for personal, non-commercial use only. You may download or install any Software and any data, information, and services provided by the Website or Services to as many personal computers, mobile telephones, iPhones®, or other mobile communications devices as you wish to the extent Software is available for and compatible with the same, but you are limited to only one simultaneous login. Any copy or portion of the Software and any data, information, and Services You access may only be accessed by You personally. You agree to provide true, accurate, current and complete information about Yourself. You are solely responsible for ensuring that Your access methods are kept confidential and only used by You. You will be solely responsible for all acts or omissions of any person accessing the Software or Subscription Services through Your Access Methods, and all transmissions or transactions generated by use of Your access methods shall be deemed to have been authorized by You.
1.2 In addition to the other terms and conditions of this Agreement, You shall NOT:
A. Use, copy, modify or transfer any Software or any data or information provided by the Services, in whole or in part, including screen shots, except as provided in Section 1.1 above or without written permission from COMPANY;
B. Decompile, disassemble or reverse engineer or otherwise attempt to derive or interfere with the code for any Software;
C. Adapt, alter, or create derivative works based on the Website, Software or Services or Help File or any data or information or content provided by or contained in or on the Website, Software or Services, without written permission from COMPANY;
D. Use the Software or any data or information provided by the Services, in connection with any service bureau or simultaneously on more than one (1) workstation in any interactive cable, wireless, or other network of single user computers;
E. Sell, rent, lend, provide, or lease the Software, the Services, or any data or information provided by the Services, to or from another party;
F. Use the Website, Software or Services for non-personal, commercial purposes;
G. Display, perform, or publish the Website, Software or any data or information provided by the Services, or any portion thereof, either publicly or to a third party, without written permission from COMPANY;
H. Obscure, alter, replace, or remove any trademarks, copyrights or other intellectual property notices on or associated with the Website, Software, the Services, or any other COMPANY websites;
I. Mention or use the COMPANY name, or any trademarks of COMPANY, or any images or copyrights or other materials or property of COMPANY, in any non-personal or commercial publications, documents, printed matter, marketing, or advertising materials, in any format or medium, including electronic and online, on websites or in domain names, without the express prior written permission of COMPANY. Any such unauthorized uses by You of the COMPANY name, or any trademarks of COMPANY, or any images or copyrights or other materials or property, are hereby assigned by You to COMPANY, along with all rights, title, interests and goodwill related thereto; and/or
J. Imply, directly or indirectly, that COMPANY provides, endorses, sponsors, certifies, is connected with, is related to, is affiliated with, or approves any of Your conduct or content, websites, products, or services, in any capacity, even if in connection with the Services, without the express prior written permission of COMPANY.
1.3 In addition to the other terms and conditions of this Agreement, You shall:
A. Comply with all applicable worldwide rules, laws, codes, and regulations related to the Services.
1.4 Content You Submit and Community Usage Rules.
A. User-Generated Content.
i. General. COMPANY may now or in the future offer visitors to the Website the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Website (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding COMPANY Licensed Elements included therein, “User-Generated Content”). COMPANY may do this through forums, blogs, message boards, social networking environments, social communities, email, and other communications functionality. Subject to the rights and license you grant in this User Agreement, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content.
ii. Non-Confidentiality of Your User-Generated Content. Except as otherwise described in the Website’s posted Privacy Statement or any Additional Terms, you agree that (a) your User-Generated Content will be treated as non-confidential and non-proprietary and will not be returned, and (b) COMPANY does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content. Upon COMPANY’s request, you will furnish us with any documentation necessary to substantiate these rights and verify your compliance with this User Agreement or any Additional Terms. You acknowledge that the Internet may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content.
iii. License to COMPANY of Your User-Generated Content. Except as otherwise described in any Additional Terms (such as a contest’s official rules), which will govern the submission of your User-Generated Content, you hereby grant to COMPANY, and you agree to grant to COMPANY, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services. In order to further effect the rights and license that you grant to COMPANY to your User-Generated Content, you also hereby grant to COMPANY, and agree to grant to COMPANY, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waiveable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 2(A)(iii).
iv. COMPANY’s Exclusive Right to Manage All User-Generated Content. COMPANY may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and COMPANY may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party. COMPANY reserves the right to treat User-Generated Content on the Website as content stored at the direction of users for which COMPANY will not exercise control except to block or remove content that comes to COMPANY’s attention and is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable to COMPANY, or to enforce the rights of third parties or the content restrictions set forth below in the Rules (defined in Section 2(B) below) when notice of their violation comes to COMPANY’s attention. Such User-Generated Content submitted by you or others need not, however, be maintained on the Website by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Website.
v. Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the state in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User Generated Content, or you have a lawful right to submit the User-Generated Content and grant COMPANY the rights to it that you are granting by this User Agreement and any Additional Terms, all without any COMPANY obligation to obtain consent of any third party and without creating any obligation or liability of COMPANY; (b) the User-Generated Content is accurate; (d) the User-Generated Content does not and, as to COMPANY’s permitted uses and exploitation set forth in this User Agreement, will not infringe any intellectual property or other right of any third party; and (e) the User-Generated Content will not violate this User Agreement (including the Rules) or any Additional Terms, or cause injury or harm to any person.
vi. Enforcement. COMPANY has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at COMPANY’s cost and expense, to which you hereby consent and irrevocably appoint COMPANY as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
B. Community Usage Rules. As a user of the Website, these Community Usage Rules (“Rules“) are here to help you understand the conduct that is expected of members of the Website’s online communities (“Communities“).
i. Nature of Rules. Your participation in the Communities is subject to all the terms in this User Agreement, including these Rules:
Your User-Generated Content. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. For example, your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to COMPANY. (For example, if someone has taken a picture of you and your friend, and you submit that photo to COMPANY as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.)
No Photos, Videos, or Images of Anyone Other Than You and Your Friends and Family. If you choose to submit photos to the Website, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their permission to submit them. Additionally, if the photo, video, or image includes a minor, you must be the parent or guardian of the child, or have permission from the child’s parents or guardians, prior to submitting them.
Act Appropriately. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Website. Cursing, harassing, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law. If you submit User-Generated Content that COMPANY reasonably believes violates this paragraph, then we may take any legal action that we deem appropriate, in our sole discretion.
Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity. If you submit User-Generated Content that COMPANY reasonably believes violates this paragraph, then we may take any legal action that we deem appropriate, in our sole discretion.
Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content. Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
Others Can See. We hope that you will use the Communities to exchange information and content and have discussions with other members. However, please remember that the Communities are a public forum and User-Generated Content that you submit on the Website within a Community will be accessible and viewable by other users. Do not submit personally identifiable information (e.g., first and last name together, password, phone number, address, credit card number, medical information, e-mail address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
Don’t Share Other People’s Personal Information. Your User-Generated Content must not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless , and in the form and by the method, specifically requested by COMPANY.
Don’t Damage the Website or Anyone’s Computers or Other Internet Devices. Your User-Generated Content must not submit viruses, trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Website or any computer or other Internet Device.
We reserve the right to request at any time proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Website.
ii. Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Website, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
1.5 Website and Content Use Restrictions.
A. Website Use Restrictions. You agree that you will not: (a) use the Website for any commercial or political purpose (including for purposes of advertising, soliciting funds, collecting product prices, and selling products); (b) use any meta tags or any other “hidden text” utilizing any COMPANY trademarks or trade names; (c) engage in any activities through or in connection with the Website that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to COMPANY; (d) reverse engineer, decompile, disassemble, reverse assemble, or modify any Website source or object code or any software or other products, services, or processes accessible through any portion of the Website; (e) engage in any activity that interferes with a user’s access to the Website or the proper operation of the Website, or otherwise causes harm to the Website, COMPANY, or other users of the Website; (f) interfere with or circumvent any security feature of the Website or any feature that restricts or enforces limitations on use of or access to the Website, the Content, or the User-Generated Content; or (g) otherwise violate this User Agreement or any Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Content (other than your User-Generated Content that does not contain any COMPANY Licensed Elements): (a) you will not monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Website by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (b) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (c) you will keep intact all trademark, copyright, and other intellectual property notices contained in such Content; (d) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (e) you will not make any modifications to such Content (other than to the extent of your permitted use of the COMPANY Licensed Elements, if applicable); (f) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by this User Agreement or any Additional Terms or with the prior written consent of an officer of COMPANY or, in the case of Content from a licensor, the owner of the Content; or (g) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Website and Content. COMPANY may immediately suspend or terminate the availability of the Website and Content (and any elements and features of them) for any reason, in COMPANY’s sole discretion, and without advance notice or liability (except as set forth in Section 9 below or any Additional Terms).
D. Reservation of All Rights Not Granted as to Content and Website. This User Agreement and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Website. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by COMPANY and its licensors and other third parties. Any unauthorized use of any Content or the Website for any purpose is prohibited.
1.6 Procedure for Alleging Copyright Infringement.
A. DMCA Notice. COMPANY will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Website, then you may send us a written notice that includes all of the following:
i. a legend or subject line that says: “DMCA Copyright Infringement Notice”;
ii. a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
iii. a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);
iv. your full name, address, telephone number, and e-mail address;
v. a statement by you that you have 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;
vi. a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and,
vii. your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.
COMPANY will only respond to DMCA Notices that it receives by mail, e-mail or facsimile at the addresses below:
400 Preston Avenue, Suite 300
Charlottesville, VA 22903
Attention: DMCA Agent
- It is often difficult to determine if your copyright has been infringed. COMPANY may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and COMPANY may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
- Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
- We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
- Without limiting COMPANY’s other rights, COMPANY may, in appropriate circumstances, terminate a repeat infringer’s access to the Website and any other website owned or operated by COMPANY.
DMCA Counter-Notification. If access on the Website to a work that you submitted to COMPANY is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
i. a legend or subject line that says: “DMCA Counter-Notification”;
ii. a description 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 (please include the URL of the Website from which the material was removed or access to it disabled);
iii. a statement 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;
iv. your full name, address, telephone number, e-mail address, and the username of your account;
v. 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 the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Western District of Virginia and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
vi. your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.
- Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
- If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than10 and not more than 14 business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Website. You should also be aware that we may forward the DMCA Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
1.7. Procedure for Alleging Infringement of Other Intellectual Property.
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Website, then you may send us a written notice to one of the addresses set forth in Section 5 above that includes all of the following:
a. a legend or subject line that says: “Intellectual Property Infringement Notice”;
b. a description of the intellectual property that you claim has been infringed;
c. a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);
d. your full name, address, telephone number, and e-mail address;
e. a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
f. a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and,
g. your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.
We will act on such notices in our sole discretion. Any user of the Website that fails to respond satisfactorily to COMPANY with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
1.8 Unsolicited Ideas and Materials Prohibited; No Confidential or Special Relationship With COMPANY.
- COMPANY develops its own new ideas and COMPANY may solicit and receive product and services idea submissions from professional inventors or others with whom it has business relationships.
- Because of this, in your communications with COMPANY, please keep in mind that COMPANY does not accept or consider any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, or designs, content, videos or webisodes (collectively, “Unsolicited Ideas and Materials”). Therefore, you must not send to COMPANY (even within any of your User-Generated Content that we may request), in any form and by any means, any Unsolicited Ideas and Materials. Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User-Generated Content and licensed to us as set forth above.
- Except as otherwise specifically described in the Website’s Privacy Statement or any Additional Terms, your relationship with COMPANY is not a confidential, fiduciary, or other type of special relationship and your Unsolicited Ideas and Materials, and anything else submitted by you (such as any questions, comments, answers, correspondence, postings, and the like) will be treated as non-confidential and non-proprietary User-Generated Content – regardless of whether you mark them “confidential”, “proprietary”, or the like. COMPANY will not assume any responsibility, obligation, or liability for the receipt or non-receipt of any of the foregoing. Therefore, your decision to submit any Unsolicited Ideas and Materials to COMPANY does not place COMPANY in a position that is any different from the position held by members of the general public with regard to your Unsolicited Ideas and Materials.
- COMPANY finds that many submissions that it receives, including those from professional inventors, are already in the public domain; or are identical or substantially similar to products developed or in development by our own staff; or, for a host of many other reasons, are not novel or unique. So if, you send us any of your Unsolicited Ideas and Materials despite our request that you not do so, it’s likely they’re identical or substantially similar to ideas, concepts, and materials that, in the past, were developed by our staff or submitted to us by others. Likewise, in the future we may, without any reference to any of your Unsolicited Ideas and Materials, develop or receive from others ideas, concepts, and materials that are identical or substantially similar to your Unsolicited Ideas and Materials.
- COMPANY’s receipt of your Unsolicited Ideas and Materials is not an admission by COMPANY of their novelty, priority, or originality, and it does not impair COMPANY’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
1.9 Links by You to the Website.
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to COMPANY, (b) the links and the content on your website do not suggest any affiliation with COMPANY or cause any other confusion, and (c) the links and the content on your website do not portray COMPANY or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to COMPANY. COMPANY reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
1.10 Linked-To Websites; Advertisements; Dealings with Third Parties.
A. Linked Websites; Advertisements. The Website may contain links, as part of third party ads on the Website or otherwise, to or from third-party websites (“Linked Websites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with COMPANY. COMPANY may have no control over the content, operations, policies, terms, or other elements of Linked Websites, and COMPANY does not assume any obligation to review any Linked Websites. COMPANY does not endorse, approve, or sponsor any Linked Websites, or any third party content, advertising, information, materials, products, services, or other items. COMPANY disclaims all liability in connection therewith. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites. COMPANY disclaims all liability in connection therewith.
B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Website (including on or via Linked Websites or advertisements) are solely between you and the third party (including issues related to the content of third party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). COMPANY disclaims all liability in connection therewith.
A. Wireless Features. The Website may offer certain features and services that are available to you via your wireless Internet Device. These features and services may include the ability to access the Website’s features and upload content to the Website, receive messages from the Website, and download applications to your wireless Internet Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding us or other parties – unless you cancel your registration or opt-out in accordance with any procedure established by us or by law. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Website for Wireless Features, then you agree to notify COMPANY of any changes to your wireless number (including phone number) and update your accounts on the Website to reflect the changes, or notify us when you wish to terminate your registration.
2) TERM AND TERMINATION
2.1 This Agreement shall commence upon the earlier of the first use and access of the Website or installation, download, copy, or use of any Software or Services by You, whether the Software is provided as a trial copy, as a fully licensed version, or any other form. Your use of any form, part, or portion of the Website, Software or Services, whether temporary or not, is considered acceptance of this Agreement in its entirety.
2.2 Any subscription and service will continue until canceled or terminated as provided herein. Both You and COMPANY may cancel any subscription or Services at any time, at-will. COMPANY may cancel any subscriptions or Services without Notice to You. Notification of termination by You shall be made to COMPANY via electronic mail at email@example.com.
2.3 Upon termination of this Agreement, by any party, for any reason, You agree to destroy any Software licensed hereunder together with all copies and modifications in any form.
3) DISCLAIMER OF WARRANTIES AND REPRESENTATIONS
3.4 EXCEPT AS SUBJECT TO ANY CONTRARY PROVISIONS OF APPLICABLE STATE LAW, COMPANY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY AND NON-INFRINGEMENT, IN CONNECTION WITH THIS WEBSITE OR ANY SOFTWARE AND SERVICES AND ANY RELATED PRODUCTS AND SERVICES AND ANY WARRANTY COVERAGE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE WEBSITE, SOFTWARE OR SUBSCRIPTION SERVICE OR ANY RELATED PRODUCTS AND SERVICES. COMPANY SPECIFICALLY DISCLAIMS WARRANTY COVERAGE FOR ANY INFORMATION OR DATA PROVIDED THROUGH THE WEBITE, ANY SOFTWARE OR SERVICES. EXCEPT AS OTHERWISE PROVIDED ABOVE, THE WEBSITE, ANY SOFTWARE AND ANY SERVICES ARE ALL PROVIDED “AS IS.” YOU ARE ASSUMING TOTAL RESPONSIBILITY FOR YOUR USE OF THE WEBSITE AND ANY SOFTWARE AND SERVICES AND FOR ANY LOSSES OR LOSS OF PROFITS, GOODWILL, USE, DATA, AND FOR ALL OTHER TANGIBLE AND INTANGIBLE LOSSES OF ANY KIND OR NATURE, REGARDLESS OF CAUSE.
4) LIMITATION AND WAIVER OF LIABILITY
IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) FOR ANY TORT, CONTRACT OR ANY OTHER DAMAGE OR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR RELIANCE ON THE WEBSITE, ANY SOFTWARE, SERVICES, OR ANY DATA, INFORMATION OR RELATED PRODUCTS OR SERVICES PROVIDED BY COMPANY OR ITS EMPLOYEES OR AGENTS, EVEN IF WE ARE SOLELY NEGLIGENT. COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, AND EVEN IF COMPANY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, RESULTING FROM: (i) THE USE OF OR INABILITY TO USE THE WEBSITE OR ANY SOFTWARE OR SERVICES; (ii) THE ACCURACY OF ANY DATA RELATED TO OR PROVIDED IN ASSOCIATION WITH THE WEBSITE, ANY SOFTWARE OR SERVICES, INCLUDING ANY ERRORS OR OMISSIONS CAUSED BY COMPANY’S OWN NEGLIGENCE; (iii) ANY ADVICE, INCLUDING ANY MEDICAL, FITNESS OF NUTRINIONAL OR OTHER ADVICE PROVIDED BY COMPANY EMPLOYEES OR AGENTS; (iv) THE COST OF GETTING SUBSTITUTE PRODUCTS OR SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM OR IN RELIANCE UPON COMPANY, ANY SOFTWARE, OR SERVICES; OR (v) FOR ANY OTHER CLAIM BY YOU OR ANOTHER PARTY RELATED TO ANY SOFTWARE, SUBSCRIPTION SERVICE, OR ANY RELATED PRODUCTS OR SERVICES. YOU ASSUME THE ENTIRE RISK AS TO THE USE OF AND RELIANCE ON THE WEBSITE AND ON ANY OTHER RELATED OR ASSOCIATED SOFTWARE, PRODUCTS AND SERVICES. IT IS YOUR RESPONSIBIILTY TO DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS YOUR REQUIREMENTS. YOU HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION AGAINST COMPANY FOR BREACH OF CONTRACT, BREACH OF WARRANTY AND NEGLIGENCE, RELATED TO THE WEBSITE AND TO ANY OTHER RELATED OR ASSOCIATED SOFTWARE, PRODUCTS AND SERVICES.
ALTHOUGH COMPANY TRIES TO PROVIDE ACCURATE AND TIMELY INFORMATION ON ITS WEBSITES AND THROUGH ANY SOFTWARE AND SERVICES, THERE MAY FROM TIME TO TIME BE INADVERTENT TECHNICAL OR FACTUAL INACCURACIES AND TYPOGRAPHICAL ERRORS, AS WELL AS DATA AND INFORMATIONAL ERRORS. COMPANY RESERVES THE RIGHT TO MAKE CHANGES AND CORRECTIONS AT ANY TIME TO ANY ERRORS, WITHOUT NOTICE OR LIABILITY TO YOU OR ANY THIRD PARTY. IN ADDITION, COMPANY MAY MAKE CHANGES TO THE WEBSITE OR TO RELATED OR ASSOCIATED INFORMATION OR DATA AT ANY TIME BUT MAKES NO COMMITMENT TO UPDATE THE WEBSITE, INFORMATION OR DATA PROVIDED BY COMPANY AS PART OF THE SOFTWARE OR ANY SERVICE OR AS PART OF ANY OTHER RELATED PRODUCTS OR SERVICES. THE INFORMATION AND DATA PROVIDED THROUGH COMPANY’S WEBSITE, ANY SOFTWARE, AND SERVICES, AND ANY OTHER RELATED PRODUCTS AND SERVICES, IS PROVIDED “AS-IS” AND “AS-AVAILABLE.” COMPANY DOES NOT REPRESENT, WARRANT OR GUARANTEE AND HEREBY DISCLAIMS ALL LIABILITY FOR, AND SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PARTY FOR YOUR RELIANCE ON, THE ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF THE WEBSITE, DATA, INFORMATION, TEXT, GRAPHICS, LINKS OR ANY OTHER ITEMS PROVIDED BY COMPANY. COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY FOR, AND SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PARTY FOR, ERRORS, INACCURACIES, UNRELIABILITY, OR OMISSIONS IN, OR THE MISUSE OR MISINTERPRETATION OF, OR ACTIONS TAKEN OR NOT TAKEN BASED ON, ANY DATA OR INFORMATION CONTAINED IN THE WEBSITE, ANY SOFTWARE, SERVICES, OR OTHER PRODUCTS OR SERVICES, EVEN IF THE RESULT OF OUR NEGLIGENCE. COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY FOR, AND SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PARTY FOR, YOUR RELIANCE ON THE ACCURACY, TIMELINESS, OR RELIABILITY OF ANY INFORMATION AND DATA PROVIDED BY COMPANY, INCLUDING BY THE WEBSITE, ANY SOFTWARE, SERVICES, OR OTHER PRODUCTS OR SERVICES. COMPANY MAY MAKE CHANGES TO INFORMATION OR DATA AT ANY TIME AND MAKES NO COMMITMENT TO UPDATE THE INFORMATION OR DATA PROVIDED BY COMPANY AS PART OF ANY SOFTWARE OR SERVICES OR AS PART OF ANY OTHER RELATED PRODUCTS OR SERVICES. YOU ASSUME THE ENTIRE RISK AS TO THE USE OF AND RELIANCE ON THE WEBSITE, ANY SOFTWARE AND SERVICES OR ON ANY OTHER RELATED PRODUCTS OR SERVICES, AND YOU ASSUME THE ENTIRE RISK AS TO THE USE, FAILURE AND LOSS OF ANY AND ALL DATA CONNECTIONS. YOU HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION AGAINST COMPANY FOR BREACH OF CONTRACT, BREACH OF WARRANTY, OR NEGLIGENCE, RELATED TO THE WEBSITE, ANY SOFTWARE, SERVICES, OR ANY RELATED PRODUCTS OR SERVICES.
THE PREVAILING PARTY IN ANY LITIGATION OR ARBITRATION ARISING OUT OF THIS AGREEMENT SHALL BE PAID, IN ADDITION TO ANY OTHER RELIEF, ITS REASONABLE ATTORNEYS FEES FOR SUCH LITIGATION OR ARBITRATION, BY THE NON-PREVAILING PARTY, WITHIN THIRTY DAYS OF THE FINAL CONCLUSION OF THE PROCEEDING.
5.1 ALL CONTENTS AND RECOMMENDATIONS BY OR PROVIDED BY COMPANY ARE BASED ON DATA AND SOURCES BELIEVED TO BE RELIABLE, BUT ACCURACY AND COMPLETENESS CANNOT BE GUARANTEED. ANY SOFTWARE, SERVICES, INFORMATION, DATA, REPORTS AND CONTENT PROVIDED BY COMPANY ARE FOR INFORMATIONAL, EDUCATIONAL, AND/OR ENTERTAINMENT PURPOSES ONLY, AND ALLOW YOU TO EVALUATE, OR TO MAKE INDEPENDENT DECISIONS CONCERNING SUBJECT MATTERS PRESENTED. IN PARTICULAR, YOU AGREE THAT COMPANY, IN PROVIDING THE WEBSITE AND ANY ASSOCIATED SOFTWARE AND SERVICES, HAS NOT ACTED AND IS NOT ACTING AS YOUR FIDUCIARY OR PROVIDED (OR HELD ITSELF OUT AS PROVIDING) ADVICE RESPECTING ANY PARTICULAR DECISIONS, AND THAT THE WEBSITE AND SOFTWARE SHALL NOT SERVE AS THE PRIMARY BASIS FOR ANY DECISION MADE BY YOU. SPECIFICALLY, NOTHING ON COMPANY’S WEBSITE, OR IN ANY SOFTWARE OR AS PART OF SERVICES, IS A RECOMMENDATION, ADVICE, OR SOLICITATION. YOU SHOULD NOT CONSTRUE ANY DATA OR INFORMATION PROVIDED BY COMPANY AS ADVICE SPECIFIC TO YOU.
5.2 COMPANY REPRESENTATIVES ARE NOT AUTHORIZED, TRAINED OR PERMITTED TO PROVIDE ADVICE. COMPANY IS NOT RESPONSIBLE FOR ANY ACTIONS TAKEN AS A RESULT OF ANY INFORMATION OR ADVICE PROVIDED BY A COMPANY REPRESENTATIVE OR EMPLOYEE AS A RESULT OF COMMUNICATIONS FROM OR TO YOU VIA EMAIL, TELEPHONE OR OTHERWISE, AND SUCH INFORMATION OR ADVICE RECEIVED BY YOU SHOULD NOT BE RELIED UPON OR CONSIDERED ACCURATE FOR ANY REASON.
5.3 YOU ALONE ASSUME SOLE RESPONSIBILITY FOR ANY DECISIONS YOU MAKE BASED ON THE WEBSITE, ANY SOFTWARE, SERVICES, OR ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED BY COMPANY. COMPANY, ITS EMPLOYEES, AGENTS, OR AFFILIATES ARE NOT RESPONSIBLE FOR ANY LOSSES YOU MAY INCUR AND YOU AGREE NOT TO HOLD COMPANY LIABLE OR RESPONSIBLE FOR ANY POSSIBLE CLAIM FOR DAMAGES ARISING FROM ANY DECISION YOU MAKE BASED ON DATA OR INFORMATION MADE AVAILABLE TO YOU BY COMPANY, THE WEBSITE, ANY SOFTWARE, SERVICES, OR ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED BY COMPANY, EVEN IF WE ARE SOLELY NEGLIGENT.
5.4 YOU ACKNOWLEDGE THAT YOU ARE REPONSIBLE FOR PROCURING ALL EQUIPMENT, CONNECTIONS AND OTHER SOFTWARE PRODUCTS WHICH MAY BE NECESSARY FOR YOUR USE OF THE WEBSITE AND ANY ASSOCIATED SOFTWARE AND THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE FOREGOING. IN ADDITION, YOU ARE SOLELY RESPONSIBLE FOR PROTECTING YOUR DATA AND FOR ENSURING THAT YOUR DATA IS APPROPRIATELY BACKED UP.
5.5 COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ANY NETWORK. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET PROVIDED BY OR CONTROLLED BY THIRD PARTIES. ACTIONS OR INACTIONS OF SUCH THIRD PARTIES OR OTHER PERSONS CAN IMPAIR OR DISRUPT CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY LOSS OF A DATA CONNECTION OR ANY FAILURE OF A TRANSACTION DUE TO ANY SUCH LOSS OF A DATA CONNECTION. ACCORDINGLY, COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
5.6 THE DISCLAIMER OF WARRANTY, LIABIILTY AND OTHERWISE CONTAINED IN THIS AGREEMENT CONSTITUTE ESSENTIAL PARTS OF THIS AGREEMENT. NO USE OF THE WEBSITE OR ANY ASSOCIATED SOFTWARE OR SERVICE, INFORMATION, DATA OR AND ANY RELATED PRODUCTS AND SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS.
6) USE AND OWNERSHIP OF THE COMPANY INTELLECTUAL PROPERTY
6.1 COMPANY, and any logo designs are, individually and collectively, trademarks or service marks owned by COMPANY. All other products mentioned in the website, any Software, or as part of the Services are registered trademarks or trademarks of their respective companies.
6.2 Any Software, Services, the Website, all other COMPANY websites, all related and associated content, and all accompanying materials and related intellectual property rights, are owned by, and Copyright 2016 to present, by COMPANY, all rights reserved. You acknowledge that the Software constitutes confidential and proprietary information of the COMPANY. At all times (both during the term of this Agreement and thereafter) you must hold the Software in the strictest confidence and may not use the Software in any manner or for any purpose other than as permitted herein and shall not disclose the Software to, or allow use by, any other person or entity. Further, you acknowledge that the Software shall remain the property of the COMPANY and you agree to notify the COMPANY immediately upon discovery of any unauthorized disclosure or use of the Software and to cooperate with the COMPANY in every reasonable way to help the COMPANY regain possession of the Software and/or to prevent further unauthorized use or disclosure of the Software.
6.3 You may not use any of COMPANY’s trademarks, copyrighted materials, web sites, data, information, web site content, web site screenshots, online screenshots, Software screenshots, or other proprietary information and/or data without express prior written consent and approval from COMPANY.
7.1 Force Majeure. COMPANY shall not be liable to You for any failure to perform under this Agreement, or for the failure of the Website or of any software, goods or services, if such failure results, whether directly or indirectly, from fire, explosion, strike, freight embargo, act of God, or of the public enemy, war, civil disturbance, terrorism, act of any government, de jure or de facto, or agency or official thereof, labor shortage, transportation contingencies, interruptions of power or communications, internet slowdowns or failures, unusually severe weather, default of manufacturer or a supplier as subcontractor, quarantine restrictions, epidemic, or catastrophe, or lack of timely instructions or essential information from the other party.
7.2 Forum for Disputes or Claims Related to This Agreement; Waiver of Legal Right to Trial and to Class Action; Right to Opt out of Arbitration or from Bar on Class Action. Any dispute or claim raised by You arising out of or relating to this Agreement or the subject matter hereof will be submitted only to binding arbitration on a confidential basis, conducted strictly in accordance with the terms of this Agreement and the substantive law of the Commonwealth of Virginia. The arbitration venue and all related hearings will be in Albemarle County, Virginia The parties agree that the arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association. Unless You and COMPANY concur in the appointment of a single arbitrator, the matter of difference shall be referred to three (3) arbitrators appointed to hear the case pursuant to the procedures set forth in the Commercial Arbitration rules of the American Arbitration Association. The arbitrators must base their decision with respect to the difference before them on the contents of this Agreement, and the decision of any two of the three arbitrators shall be binding on both You and COMPANY. Judgment upon the award rendered by the arbitrator(s) may be entered and enforced in any court of competent jurisdiction. Neither You or COMPANY will be precluded hereby from seeking equitable provisional remedies in the courts of any jurisdiction including, but not limited to, temporary restraining orders and preliminary injunctions, but such equitable remedies will not and may not be sought to avoid or stay arbitration. YOU HEREBY AGREE AND UNDERSTAND THAT BY USING THIS WEBSITE, ANY SOFTWARE AND SERVICES PURSUANT TO THIS AGREEMENT YOU ARE WAIVING YOUR RIGHTS TO FILE A LAWSUIT AGAINST COMPANY IN A COURT OF LAW FOR CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE WEBSITE, ANY SOFTWARE, AND SERVICES. ANY DISPUTE OR CLAIM RAISED BY COMPANY HOWEVER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL, AT COMPANY’S SOLE CHOICE AND DISCRETION, EITHER BE SUBMITTED TO BINDING ARBITRATION IN ACCORDANCE WITH THIS SECTION, OR FILED AS A LAWSUIT IN THE APPROPRIATE FEDERAL OR STATE COURT. YOU HEREBY AGREE TO THIS DIFFERENCE IN THE AVAILABILITY OF AND FORUM FOR RELIEF FOR DISPUTED CLAIMS BETWEEN YOURSELF AND COMPANY, AS SET FORTH IN THIS SECTION. YOU FURTHER AGREE NOT TO PURSUE OR BE THE PLAINTIFF OR REPRESENTATIVE IN ANY CLASS ACTION CASES OR LITIGATIONS AGAINST COMPANY ANYWHERE WORLDWIDE, RELATED TO THE SUBSCRIPTION SERVICE, OR TO ANY COMPANY CONDUCT, PRODUCTS OR SERVICES. YOU HEREBY AGREE AND UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO BE INVOLVED IN ANY CLASS ACTION AGAINST COMPANY.
7.3 Governing Law and Venue. Except as relates to any federal law causes of action, this Agreement shall be governed in all respects by the substantive laws of the Commonwealth of Virginia, but excluding the application of Commonwealth’s choice of law provisions. Any arbitration or provisional equitable action commenced by You, or arbitration, equitable, or other legal action in a court of law commenced by COMPANY, arising out of or relating to this Agreement, shall be commenced in or nearest to Charlottesville, VA. In any action commenced by COMPANY in a court of law You irrevocably hereby submit and consent to and agree not to contest, object to, or challenge, the personal jurisdiction over You, by any court in or nearest to Charlottesville, VA, in which such action is filed, as well as to the venue of such court, and you hereby waive any and all defenses, challenges, or objections related to personal jurisdiction and venue. NO ACTION, REGARDLESS OF FORM, RELATING IN ANY MANNER TO THE WEBSITE, THE SOFTWARE, OR OTHERWISE TO THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS SECTION, A CAUSE OF ACTION IS DEEMED TO HAVE ACCRUED WHEN YOU KNEW OR REASONABLY SHOULD HAVE KNOWN ABOUT THE BREACH OR CLAIMED BREACH OR ANY OTHER CAUSE OF ACTION AGAINST US.
7.4 Enforceability. You agree the Agreement and all terms and conditions herein are enforceable and are not unconscionable and not in violation of public policy. You agree the Agreement is not a contract of adhesion and that You had the power and control to reject, alter, and negotiate the terms and conditions herein. In the event any specific sentences, portions, or provisions of this Agreement are held by a court of competent jurisdiction or an arbitrator to be invalid or unenforceable, the remaining sentences, portions and provisions of this Agreement will remain binding and in full force and effect. No employee, agent or representative of COMPANY who is not an officer of COMPANY has any authority to vary, waive or contradict any of the terms of this Agreement.
7.6 Entire Agreement; Modifications. This Agreement, including any future revisions, is the entire agreement and understanding between You and COMPANY with respect to the subject matter of this Agreement and supersedes all prior agreements, representations, inducements, negotiations and understandings between, by and among You and COMPANY, whether oral or written, all of which are merged into this Agreement. COMPANY disclaims all representations other than those expressly set forth in this Agreement. You agree You are not relying on or accepting any representations, coercions, representations, or inducements by COMPANY, relating to the subject matter hereof, made outside of this Agreement, nor that there were any outside of this Agreement upon which to rely.
7.7 Updates to User Agreement. COMPANY reserves the right to modify, revise and update this User Agreement and any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link on the Website, and that your use of the Website after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review this User Agreement and any Additional Terms on a regular and frequent basis. The Updated Terms will be effective as of the time that COMPANY posts them on the home page of the Website, or such later date as may be specified in them.
7.8 COMPANY’s Consent or Approval. As to any provision in this User Agreement or any Additional Terms that grants COMPANY a right of consent or approval, or permits COMPANY to exercise a right in its “sole discretion”, COMPANY may exercise that right in its sole and absolute discretion. No COMPANY consent or approval may be deemed to have been granted by COMPANY without being in writing and signed by an officer of COMPANY.
7.9 Indemnity. You agree to, and you hereby, defend, indemnify, and hold COMPANY Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) as well as the expenses of any legal proceeding related thereto, that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any COMPANY Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) your User-Generated Content; (ii) your use of the Website or Software and your activities in connection with the Website or Software; (iii) your breach or anticipatory breach of this User Agreement or any Additional Terms; (iv) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with your use of the Website, Software, or your activities in connection with the Website or Software; (v) information or material transmitted through your Internet Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) COMPANY Parties’ use of the information that you submit to us (including your User-Generated Content); (viii) your purported “ownership” of any usage subscriptions or virtual items; and (ix) the increase or decrease in “value” or loss of usage subscriptions or virtual items if COMPANY deletes, terminates, or modifies them (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by COMPANY Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, COMPANY Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. COMPANY Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a COMPANY Party.
7.10 Operation of Website; Availability of Products and Services; International Issues. COMPANY controls and operates the Website from its offices in the U.S.A. COMPANY makes no representation that the Website is appropriate or available for use beyond the U.S.A. If you use the Website from other locations, you are doing so of your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. Subject to the terms of this User Agreement, we reserve the right to limit the availability of, restrict access to, or discontinue the Website and/or any content, program, product, service, or other feature described or available on the Website to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. Some content, programs, services, or features may be available on this Website only on a subscription or fee basis. You and we disclaim any application to this User Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
7.11 Export Controls. Software related to or made available by the Website may be subject to export controls of the U.S.A. No software from the Website may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of this User Agreement, includes Cuba, North Korea, Iran, Sudan and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). By downloading any software related to the Website, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
7.12 Severability; Interpretation. If any provision of this User Agreement, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from this User Agreement or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this User Agreement or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in this User Agreement or any Additional Terms, the word will be deemed to mean “including, without limitation”.
7.13 Communications. When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. Please note that, except as set forth in Section 5 above, we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
7.14 Investigations; Cooperation with Law Enforcement; Termination; Survival. COMPANY reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Website security or its information technology or other systems or networks, (ii) investigate any suspected breaches of this User Agreement and any Additional Terms, (iii) investigate any information obtained by COMPANY in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of this User Agreement and any Additional Terms, and (vi) discontinue the Website, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to COMPANY under this User Agreement or any Additional Terms. Upon suspension or termination of your access to the Website, or upon notice from COMPANY, all rights granted to you under this User Agreement or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Website. The provisions of this User Agreement and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to COMPANY in this User Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
7.15 Assignment. COMPANY may assign its rights and obligations under this User Agreement and any Additional Terms, in whole or in part, to any party at any time without any notice. This User Agreement and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of COMPANY.
7.16 No Waiver. Except as expressly set forth in this User Agreement or any Additional Terms, (i) no failure or delay by you or COMPANY in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of this User Agreement or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
You acknowledge that You have read and understood this Agreement’s terms and conditions, the disclaimers, the waivers of Your legal rights, that You understand the responsibilities and obligations this Agreement places on You, and that You agree to be legally bound by all the terms and conditions of this Agreement.
IF YOU DO NOT AGREE WITH OR UNDERSTAND ANY OF THESE TERMS OR CONDITIONS, DO NOT ACCESS OR USE THE WEBSITE OR INSTALL, DOWNLOAD, USE, OR OTHERWISE ACCESS OR USE ANY SOFTWARE, SERVICES, OR ANY COMPANY WEBSITES, OR ANY RELATED PRODUCTS OR SERVICES.