Effective Date: January 1, 2012
Table of Contents
- Additional Terms
- Intellectual Property Ownership
- Copyrights and Copyright Agents
- Information You Submit
- Use of Advertising Templates on the Web Sites and Custom Advertisements
- Viral Distribution
- Use of Samples
- Third Party Content and Information
- Your Conduct on our Web Sites
- Acceptable Use
- Limitation of Liability
- Governing Law, Venue and Jurisdiction
We may modify these TOU at any time without notice to you by posting revised TOU on our Web Sites and such modification will be effective upon posting by Company on the Web Sites. Your continued use of our Web Sites after Company posts a revised TOU constitutes your binding acceptance of these TOU, including any modifications that we make. It is therefore important that you review these TOU regularly to ensure you are updated as to any changes.
2. Additional Terms.
Some of the Services may be subject to additional terms. Your use of those Services is subject to those additional terms, which are incorporated into these TOU by reference. In the event of an inconsistency between these TOU and any additional terms, the provisions of the additional terms take precedence and control. By way of example and without limitation, the Web Sites may permit you to purchase advertising from us through the Web Sites and each purchase that you make will be subject to the terms and conditions set forth in any advertising media purchase agreement that is posted at the time of your purchase. Further, the Web Sites may contain or offer sweepstakes, contests or other promotions, which may be governed by a separate set of rules. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid or restricted, and to determine the sponsor’s requirements of you in connection with the applicable sweepstakes, contest or promotion.
We have the right, but not the obligation, to take any of the following actions (or none), in our sole discretion at any time, and for any reason without giving you any prior notice:
a. Restrict, suspend, or terminate your access to all or any part of our Services;
b. Change, suspend, or discontinue all or any part of our Servicess;
c. Refuse, move, or remove any material that you submit to our Web Sites for any reasons;
d. Refuse, move, or remove any content that is available on our Web Sites;
e. Deactivate or delete your accounts and all related information and files in your account; and;
f. Establish general practices and limits concerning use of our Web Sites.
You agree that we will not be liable to you or any third party for taking any of these actions.
4. Intellectual Property Ownership.
The past, present and future content on the Web Sites, including, without limitation, organization, graphics, text, images, audio, videos, ringtones, voicetones, widgets, wallpapers, games, contests, voting, technology, applications, Templates (defined below), artwork, information, data, designs, compilations, advertising copy, and the trademarks, logos, domain names, trade names, service marks and trade identities; any and all copyrightable material (including source and object code); and all other materials related to the Web Sites, including, without limitation, the “look and feel” of the Web Sites (collectively, “Content”), are protected by applicable U.S. copyright laws, international conventions, other applicable copyright and/or trademark laws and other proprietary (including, but not limited to, intellectual property) rights and are owned or controlled by Company, its parent, subsidiaries, affiliates or its licensors. Except as expressly set forth in these TOU or otherwise expressly granted to you in writing by Company, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Content not expressly granted to you under this TOU are hereby reserved for Company and/or its parent, subsidiaries affiliates or its licensors. Nothing contained in this TOU will affect, impair, or limit in any way Company’s rights to exploit fully any or all of the Content. The copying, reproduction, alteration, rearrangement, sales, leasing, renting, distribution, redistribution, modification, downloading, exchanging, creating of derivative works, uploading, posting, transmitting, or publication by you, directly or indirectly, of the Content, including the removal or alteration of content, advertising or promotional materials, except pursuant to the express limited grant of rights hereunder, is strictly prohibited. You agree to abide by any and all additional copyright notices, information, or restrictions contained in any part of the Web Sites (including the Content) or as Company may impose from time to time. Moreover, you agree that you will not remove any proprietary notices or labels contained in or on the Content. Copying, archiving or storing any part of the Web Sites for a purpose that is not permitted by these TOU is expressly prohibited without prior written permission from Company or the applicable copyright holder as identified on the Web Sites. You acknowledge and agree that you will not, directly or indirectly, contest, challenge, aid or abet in contesting or challenging the validity or ownership of the Content, or take any action whatsoever in derogation of Company’s rights therein, or in breach of, any terms and conditions contained in this TOU. You acknowledge and agree that you will not acquire or claim any rights in the Content, or aid or abet anyone else in doing so. Nothing in this TOU will be interpreted to grant you, any right or license to enter into sublicenses or redistribution agreements with respect to any portion of the Content or to otherwise rent, sell, lease, loan, transfer, assign, broadcast, upload to any computer or wireless device, sublicense, distribute or allow access to the Content. You agree that you will not charge any person or entity to view, listen, play or otherwise access any Content, or disseminate any Content in any manner to the public (for free or for a fee).
5. Copyrights and Other Intellectual Property and Related Complaints.
You may not use the Web Sites for any purpose or in any manner that infringes the rights of any third party. Company encourages users to report any content on its Web Sites that a user believes infringes his or her rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on one of Company’s Web Sites infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
Copyrights and Copyright Agent
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), Company has a designated agent for receiving notices of copyright infringement and Company follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Company’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Company’s copyright agent for notice of claims of copyright infringement on or regarding the Web Sites can be reached as follows:
Attn: General Counsel
14141 Dickens Street, Suite 305
Sherman Oaks, California 91423
By e-mail: email@example.com
NOTE: This contact information is for inquiries regarding potential copyright infringement only. For inquiries regarding content that you believe may otherwise violate your rights, please see below.
Other Intellectual Property and Related Complaints
If you believe that any of Company’s Web Sites contain content that violate your rights other than copyrights, please provide Company at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (c) an explanation what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you. Please send your complaint regarding content on one of Company’s Web Sites to:
Attn: General Counsel
14141 Dickens Street, Suite 305
Sherman Oaks, California 91423
By e-mail: firstname.lastname@example.org
NOTE: This contact information is only for inquiries regarding content that you believe may be infringing
Other Important Information Regarding Potential Copyright Infringement or other Content Complaints
We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
Company will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party’s intellectual property rights. As a regular part of our business, Company displays advertisements and product listings from a wide variety of companies. We encourage the owners of intellectual property rights who believe their rights are being infringed by a company who advertises or lists its products on our site to resolve their disputes directly with that company. Company is not in a position to arbitrate disputes between users or the owners of intellectual property rights and companies who advertise or list their products on our Web Sites. As a courtesy to owners of intellectual property rights, we may perform a limited investigation of reasonable complaints. However, we provide no guarantee that we will remove the allegedly infringing materials from our Web Sites.
You may only view, use, download, reformat and/or print Company’s Content for your revocable, non-commercial personal use, subject to these TOU. Except for the limited license provided to you, if you desire to use any of Company’s Content for any commercial or other purposes, you must obtain our prior written permission and the use of such Content is subject to: (i) these TOU, (ii) any additional terms that may govern the Content that are posted on the Web Site, and (iii) any requirements we make you aware of when we provide you permission to use our Content.
You may link from another site to Company’s Content, subject to the following restrictions: any web site that links to the Web Sites: (a) must not frame or create a browser or border environment around any of the Content of the Web Sites; (b) may link to, but not replicate, the Content; (c) must not imply that Company or the Web Sites are endorsing or sponsoring it or its products, unless Company has given its prior written consent; (d) must not present false information about Company or its products or services; (e) must not use any Company trademarks without the prior written permission from Company; and (f) must not contain content that could be construed as distasteful, offensive or controversial. We reserve the right to deny permission to link to the Web Sites for any reason in our sole and absolute discretion. By linking to any of the Web Sites, you agree that you do and will continue to comply with the above linking requirements.
8. Information You Submit.
From time to time, the Web Sites may contain functionality through which you can upload or otherwise submit information, data, software, messages, photographs, audio, video, text and other materials to the Web Sites (“User Upload Information”). For purposes of clarity, the definition of “User Upload Information” specifically excludes Custom Advertisements (defined below) and Your Contribution to Custom Advertisements (defined below) which shall be governed by the provisions set forth in Section 9 below. For example, the Web Sites may offer forums, bulletin boards, chat rooms or other interactive areas (“User Forums”). You must read and follow the posted User Forum rules, if any, at the top of the forums in which you post. Company, its parent, subsidiaries or affiliates or the directors, officers, employees, or other representatives of each of them do not endorse the content posted in User Forums. Company reserves the right to suspend or terminate your access to the Web Sites and pursue all legal remedies if we believe your User Upload Information infringes another’s copyright or otherwise violates any law, rule or regulation. Except as expressly allowed by Company in writing, you acknowledge and agree that you are prohibited from accepting payment for User Upload Information, including, without limitation, accepting payment for the inclusion of a logo, brand or other commercial content, in User Upload Information. You agree to use User Forums only to send and receive messages and material that are proper and related to that particular User Forum.
All of User Upload Information is your sole responsibility. This means that you, and not Company, are entirely responsible for all of User Upload Information that you upload, post, e-mail, transmit or otherwise make available via the Web Sites. If you post personal information in User Forums or on other publicly available areas of the Web Sites, then you may receive unsolicited messages from third parties. Company cannot ensure the security of any information you post on publicly available areas of the Web Sites. Under no circumstances will we be liable in any way for any of User Upload Information, including, but not limited to, any errors or omissions in User Upload Information, or for any loss or damage of any kind incurred as a result of User Upload Information. You represent that User Upload Information is an original work by you or you have all necessary rights in it and to submit it to Company under the terms of these TOU; that it is not defamatory; and that it does not infringe upon, misappropriate or violate the rights of any third parties, including, without limitation, any intellectual property rights, rights of publicity or privacy or any other proprietary rights or otherwise violate any law, rule, or regulation. You further agree that you are solely liable for any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys’ fees, connected to or arising from your breach of any representation or warranty, or other violation of the terms of the TOU.
You acknowledge that the Web Sites, through Company, its parent, subsidiaries, affiliates, and partners undertakes no obligation to pre-screen User Upload Information, but that it has the right, in its sole discretion to modify, delete, edit, distribute, refuse, move, block access to or remove any User Upload Information. You agree that you must evaluate, and bear all risks associated with, the use of any of User Upload Information, including, but not limited to, any reliance on the accuracy, completeness, or usefulness of User Upload Information. Since Company, its parent, subsidiaries, affiliates, and partners may not pre-screen user-generated content, you may bear legal responsibility for others’ exposure to any offensive indecent or objectionable content in User Upload Information.
9. Use of Advertising Templates on the Web Sites and Custom Advertisements.
Company may provide certain functionality on the Web Sites that allows you to manipulate Content, including, but not limited to, certain templates (each a “Template” and collectively, the “Templates”) provided on the Web Sites, which may be used by you for the creation, development and submission of custom advertisements (“Custom Advertisements”) by allowing you to combine your own content (“Your Contribution to Custom Advertisements”) with the Templates or otherwise customize the Templates to create Custom Advertisements. The Templates are considered Content, are owned by Company, and are subject to the provisions in Section 4 above. Any Custom Advertisements you develop are subject to the provisions set forth below and any additional agreements you enter into with Company regarding the Custom Advertisements. Please note that except as set forth in these TOU, you cannot copy, download, print, create derivatives of, or utilize in any way any of the Templates or other materials on the Web Sites without our express prior written permission.
The Web Sites permit you to use the Templates in conjunction with the creation, development, submissions and purchase of advertising from Company. When you purchase advertising from us, the purchase will be subject to the terms of the advertising media purchase agreement (the “Advertising Agreement”) that we enter into with you, which is incorporated herein by this reference. As further described in Section 4, the Templates are owned by us and will continue to be owned by us during and after your use. This includes any modifications to a Template that we make or authorize you to make, whether personalized or otherwise.
All of Your Contribution to Custom Advertisements are your sole responsibility and you, and not Company, are entirely responsible for all of the content you provide in Your Contribution to Custom Advertisements. It is your responsibility to check the correctness of each Custom Advertisement before submitting it to Company. Under no circumstances will we be liable in any way for Your Contribution to Custom Advertisements, including, but not limited to, any errors or omissions in Your Contribution to Custom Advertisements, or for any loss or damage of any kind incurred as a result of Your Contribution to Custom Advertisements. You represent and warrant that Your Contribution to Custom Advertisements is original work by you or you have all necessary rights in it and to submit it to Company under the terms of these TOU; that it is not defamatory; and that it does not infringe upon, misappropriate or violate the rights of any third parties, including, without limitation, any intellectual property rights, rights of publicity or privacy or any other proprietary rights or otherwise violate any law, rule, or regulation. You further agree that you are solely liable for any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys’ fees, connected to or arising from, your breach of any representation or warranty, or other violation of the terms of the TOU or any other user agreement posted on the Web Sites. Use of all Templates and materials must be consistent with and are subject to any additional terms that are provided at the time you purchase any advertising, including, but not limited to, as specifically set forth in the Advertising Agreement.
During the period that your Custom Advertisement(s) is/are featured on our advertising media, we may allow you, with our express prior written permission, the exclusive use of the specific Template(s) that you selected only within the general geographic area of your purchase. For purposes of certainty, even if we grant you the exclusive use of a Template while your advertising purchase is in effect, we may allow someone in another geographic area to use it. Of course, once the term of your Advertising Agreement with us has ended, we can allow others, even in your geographic area, to use, and request modifications to, the Template. Whether or not you purchase any advertising media from us, you cannot, without our express prior written consent, use the Templates in any advertising media not purchased from us.
Your use of the Templates and your creation of any Custom Advertisements is subject to the following terms and conditions:
a. Company owns the Templates and retains all rights in the Templates. The license Company grants you to use the Templates in connection with Custom Advertisements is limited to the Templates specifically made available by Company for use in connection with Custom Advertisements, and may be revoked by Company at any time without liability to you;
b. The license to use the Templates in connection with Custom Advertisements is solely for the purpose of allowing you to manipulate the Templates or combine the Templates with Your Contribution to Custom Advertisements;
c. Your use of the Templates and Custom Advertisements is subject to these TOU and any additional terms and conditions as Company may from time-to-time notify you in these TOU or otherwise, including, but not limited to, the Advertising Agreement;
d. You retain whatever prior rights you had in Your Contribution to Custom Advertisements and retain the right to use Your Contribution to Custom Advertisements in works entirely unrelated to Custom Advertisements and entirely unrelated to derivative works of Custom Advertisements;
e. You will not make any use of or license, distribute, reproduce, or otherwise exploit any part of the Custom Advertisements (except Your Contributions to Custom Advertisements), without our express written permission.
10. Viral Distribution.
By express written direction on the Web Sites, the Company may grant you the limited, revocable permission to engage in Viral Distribution as may from time to time be made available on the Web Sites for such purpose. “Viral Distribution” means these personal uses only and only if there is express written permission on the Web Sites to do so: (a) sending Content or other material such as Custom Advertisements to friends or acquaintances at no charge by e-mail or other forms of digital delivery; or (b) reproducing copies of Content for personal use. If expressly permitted on the Web Sites, you may engage in Viral Distribution pursuant to these TOU, but you will not make any use of or license, distribute, reproduce, or otherwise exploit any part of the Content or Custom Advertisements without our express written permission.
11. Use of Samples.
The Websites will, from time to time, feature depictions of advertisements which are not actual advertisement campaigns which Company arranged or sold or may not have existed at all (hereinafter the “Samples”). The Samples may contain advertisements for products, entities, groups, associations, individuals, and/or, without limitation, services (the “Entities”) with or for which Company does not currently or may not have ever had a relationship. Such Samples are provided strictly and solely for the purpose of demonstrating the look and feel which a similar advertisement may have when purchased and/or arranged through Company. In no way is the posting or exhibition of Samples on the Web Sites intended to be a representation that Company had, has, or will have any relationship with, made any sale to, or transacted any other business with the Entities. To the extent you engage in any relationship and/or transact any business with Company as a result of, whether based exclusively or partially on, your viewing Samples on the Web Sites, you agree that you have read and understood this portion of the TOU, that you are not relying on any representation regarding Company’s prior, current, or future relationship with any depicted Entities in engaging in any relationship or transacting any business with the Company, and that your viewing of the Entities and subsequent engagement in any relationship with the Company has not caused you any resulting harm or damage.
12. Third Party Content and Information.
The Web Sites contain Content that is provided for your convenience and enjoyment. Third parties provide some of the Content. You should be aware that the Content might contain errors, omissions, inaccuracies, outdated information, and inadequacies and that the Content may be subject to terms and conditions, which may be found on the Web Sites or in the documents and policies of third parties. We make no representations or warranties as to the completeness, accuracy, adequacy, currency or reliability of any Content and will not be liable for any lack of the foregoing. Third parties may offer goods, services and other materials to you on the Web Sites. Your correspondence and business dealings with others found on or through the Web Sites, including, without limitation, the payment and delivery of products and services, and any terms, conditions, warranties and representations associated with such dealings, are solely between you and the advertiser. You agree that Company will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or the offering of such products, services, and other Content on the Web Sites. Under certain circumstances, we may permit third party users to upload content, in which event you may be exposed to offensive, indecent or objectionable content. We have the right, but not the obligation, to remove any content that may, in our sole discretion, violate these TOU or that is otherwise objectionable. Descriptions of, or references to, products, services or publications within the Web Sites do not imply endorsement of that product, service or publication.
13. Your Conduct on our Web Sites.
If we request registration information from you, you will provide us with true, accurate, current, and complete information. If you create a user account, you agree to accept responsibility for all activities that occur under your account or password, if any, and agree you will not sell, transfer or assign your user account. You will promptly update your registration to keep it accurate, current, and complete. If we issue you a password, you may not reveal it to anyone else. You may not use anyone else’s password. You are responsible for maintaining the confidentiality of your accounts and passwords. You agree to immediately notify us of any unauthorized use of your passwords or accounts or any other breach of security. You also agree to exit from your accounts at the end of each session. We will not be responsible for any loss or damage that may result if you fail to comply with these requirements.
The technology and the software underlying our Web Sites and the Services (including any software that we make available for download or use from the Web Sites and/or our servers) (the “Software”) is the property of Company, our affiliates, our partners, or independent suppliers. Your use of the Software may be governed by the terms of an end-user license agreement that accompanies or is included with the Software (the “License Agreement”). Please carefully read the License Agreement and these TOU to determine the full extent of conditions governing the use of such Software. Except if expressly permitted by the License Agreement, you agree not to copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in, or otherwise transfer any right to the technology or Software underlying our Web Sites or the Services. You agree not to modify the Software underlying our Web Sites or the Services, in any manner or form or to use modified versions of such Software, including (without limitation) for the purpose of obtaining unauthorized access to our Web Sites.
15. Acceptable Use.
Without limiting the foregoing, you agree that you will not use our Web Sites or the Services to take any of the following actions:
a. Defame, abuse, harass, stalk, threaten, or otherwise violate the legal right of others;
b. Publish, post, upload, e-mail, distribute, display, promote, disseminate or otherwise make available (collectively, “Transmit”) any material that is inappropriate, profane, vulgar, libelous, defamatory, obscene, indecent, unlawful content, offensive, pornographic, profane, racist, sexually explicit, ethnically or culturally offensive, indecent, false, unlawful, threatening, tortious, disparaging (including disparaging of Company, its parent, subsidiaries or affiliates), anything that adversely affects Company’s business, such as discouraging any person or entity from advertising with, linking to or supplying Company, or that promotes violence, racial hatred or terrorism, or is otherwise objectionable in Company’s sole discretion;
c. Transmit any information, software, or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties, including, without limitation, copyright (including, without limitation, offering pirated computer programs or links to such programs, information used to circumvent forensic, identification or tracing information, rights signaling, tracking, reporting or recognition information, or copy-protect devices, including serial registration numbers for software programs, or any type of hacker or cracker utilities), trademark, patent, trade secret, rights of privacy or publicity or any other proprietary right;
d. Upload, transmit files that contain viruses, corrupted files, spyware, adware or any other software or programs that may damage or adversely affect the operation of another person’s computer, our Web Sites, any software or hardware, or telecommunications equipment or take any steps to on or in connection with the Web Sites that deactivates any copy protection devices, programs or utilities;
e. Transmit surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, or chain letters;
f. Download any file that you know or reasonably should know cannot be legally obtained in such manner;
g. Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other material;
h. Restrict or inhibit any other user from using and enjoying any public area within our Web Sites;
i. Collect or store personal information about other end users;
j. Interfere with or disrupt our Web Sites, servers, or networks;
k. Impersonate any person or entity, including, but not limited to, a Company representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
l. Forge headers or manipulate identifiers or other data in order to disguise the origin of any content transmitted through our Web Sites or to manipulate your presence on our Web Sites;
m. Take any action that imposes an unreasonably or disproportionately large load on our infrastructure;
n. Use or attempt to use another’s information (including financial information), account, wireless account, wireless device, password, service or system, except to the extent you have permission to use such information; or
o. Engage in any illegal activities.
You represent, warrant and agree that you will comply with the above acceptable use policy.
Additionally, you understand and agree that Company will determine your compliance with these TOU, in its sole discretion. Company reserves the right to deny access to all or part of the Web Sites and to deny access to any person for any reason, in its sole discretion, without notice or liability of any kind. Any violation of these TOU may be referred to law enforcement authorities. Upon termination of your user account or access to the Web Site, or upon demand by Company, you must destroy all materials obtained from this Web Site and all related documentation. Unauthorized access to any of our Web Sites is a breach of these TOU and a violation of the law. You agree not to access our Web Sites by any means other than through the interface that is provided by Company for use in accessing our Web Sites. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of our Web Sites, except those automated means that s have approved in advance and in writing.
You are solely responsible for compliance with applicable laws, rules, and regulations in connection with your use of the Web Sites and the Content, including, without limitation, those governing your transmission or use of any software or data. If you choose a username that, in our sole discretion, is obscene, indecent, abusive or that might otherwise subject us to public disparagement or scorn, Company reserves the right, without prior notice to you, to automatically change your username, delete your posts from our Web Sites, deny you access to our Web Sites, or any combination of these options.
You agree to defend, indemnify and hold harmless the Company, its parent, subsidiaries, affiliates, and the directors, officers, employees, managers, members, shareholders, vendors, partners, contractors, agents, licensors or other representatives of each of them or assigns or predecessors of each of them (“Company Parties”) with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including, without limitation, attorneys’ fees arising out of or in connection with this TOU, including, without limitation: (a) your use of the Web Sites; (b) your violation of these TOU or any law, rule or regulation, including, without limitation, those relating to false advertising, intellectual property infringement or defamation; (c) your use of the Content; (d) any use or alleged use of your accounts or your passwords by any person, whether or not authorized by you; (e) your connection to the Web Sites; or (f) Your Contribution to Custom Advertisements. You will cooperate as fully and reasonably as required by Company in the defense of any claim. Notwithstanding the foregoing, Company retains the exclusive right to assume the exclusive defense and control of any matter for which you are required to indemnify us and/or settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against Company herein under the terms and provisions of this Section and in no event shall you settle any such claim without Company’s prior written approval.
We disclaim any responsibility for the deletion, the failure to store, the misdelivery, or the untimely delivery of any information or material. We disclaim any responsibility for any harm resulting from downloading or accessing any information or material on the Internet using search results from our Web Sites. We disclaim any responsibility for, and if you subscribe to one of our fee-based services you will not be entitled to a refund as a result of, any service outages that are caused by our maintenance on the servers or the technology that underlies our Web Sites, failures of our service providers (including telecommunications, hosting, and power providers), computer viruses, natural disasters or other destruction or damage of our facilities, acts of nature, war, civil disturbance, or any other cause beyond our reasonable control.
THE WEB SITES, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, SOFTWARE, AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE WEB SITES, ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY AND ITS PARENTS, SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) ABOUT: (A) THE WEB SITES; (B) THE CONTENT (INCLUDING THE TEMPLATES) AND SOFTWARE ON AND PROVIDED THROUGH THE WEB SITES; (C) THE FUNCTIONS MADE ACCESSIBLE ON OR ACCESSED THROUGH THE WEB SITES; (D) THE MESSAGES AND INFORMATION SENT FROM THE WEB SITES BY USERS; (E) ANY PRODUCTS OR SERVICES OFFERED VIA THE WEB SITES, INCLUDING, BUT NOT LIMITED TO, CUSTOM ADVERTISEMENTS, HYPERTEXT LINKS OR OTHER INTERACTIVE FEATURES THAT ARE ACCESSIBLE OR DOWNLOADABLE THROUGH THE WEB SITES; AND/OR (F) SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE WEB SITES OR ANY LINKED SITE. COMPANY DOES NOT WARRANT THAT THE WEB SITES, ANY OF THE WEB SITES’ FUNCTIONS OR ANY CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE WEB SITES OR THE SERVERS THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
COMPANY DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE WEB SITES IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, COMPANY SPECIFICALLY DISCLAIMS SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE WEB SITES, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE WEB SITES OR THE CONTENT. FURTHER, COMPANY AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. YOU EXPRESSLY AGREE THAT YOU WILL ASSUME THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF OUR WEB SITES AND THE ACCURACY OR COMPLETENESS OF ITS CONTENT. COMPANY, ITS PARENT, SUBSIDIARIES OR AFFILIATES OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM SHALL NOT BE LIABLE FOR THE USE OF THE WEB SITES, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THIS AGREEMENT.
19. Limitation of Liability.
YOU UNDERSTAND AND AGREE THAT COMPANY LIMITS ITS LIABILITY IN CONNECTION WITH YOUR USE OF THE WEB SITES AS SET FORTH BELOW:
UNDER NO CIRCUMSTANCES SHALL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (1) THE WEB SITES, THE CONTENT, YOUR CONTRIBUTION TO CUSTOM ADVERTISEMENTS, OR CUSTOM ADVERTISEMENTS; (2) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE WEB SITES; (3) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY COMPANY OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE WEB SITES OR CONTENT (INCLUDING THE TEMPLATES); (4) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; (5) ANY ERRORS OR OMISSIONS IN THE WEB SITES’ TECHNICAL OPERATION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY PARTIES AND INDIVIDUALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE WEB SITES); OR (6) ANY ACT, OMISSION, FAILURE TO DISTRIBUTE, MISTAKE AND/OR ERROR IN THE CREATION, DEVELOPMENT AND/OR DISTRIBUTION OF CUSTOM ADVERTISEMENTS. IN NO EVENT WILL THE COMPANY PARTIES AND INDIVIDUALS BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE COMPANY PARTIES AND INDIVIDUALS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100).
THE PARTIES AND INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY USER’S COMPUTER, MODEM, CELL PHONE, HARDWARE, SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
YOUR ACCESS TO AND USE OF THIS WEB SITE IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE WEB SITE OR ANY OF THE CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE WEB SITE OR THE CONTENT.
YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF COMPANY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, MOTION PICTURE, OUT OF HOME DISPLAY OR OTHER AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY COMPANY AND/OR ITS PARENTS, SUBSIDIARIES, AND/OR AFFILIATES OR YOUR UPLOAD INFORMATION, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY COMPANY WEB SITE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, MOTION PICTURE, OUT OF HOME DISPLAY OR OTHER AUDIO/VISUAL CONTENT OR YOUR UPLOAD INFORMATION OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
BY ACCESSING ANY OF THE WEB SITES, I UNDERSTAND THAT I MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
20. Governing Law, Venue and Jurisdiction.
THESE TOU SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
You agree that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to the Web Sites, the Use or Access thereof, or these TOU must be in the state or federal courts located in Los Angeles, California and you hereby consent and submit to the exclusive personal jurisdiction and venue of the courts located in Los Angeles, California for any such legal proceeding.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our Web Sites or these TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred.
To the fullest extent permitted by applicable law, you agree that any and all disputes, claims and causes of action you may have in connection with or related to the Web Sites will be resolved individually, without resort to any form of class action.
The Company’s failure to exercise or enforce any right or provision of these TOU shall not constitute a waiver of such right or provision.
These TOU, including all terms, conditions, and policies that are incorporated into these terms by reference, constitute the entire agreement between you and Company and govern your use of our Web Sites, superseding any prior agreements that you may have with Company.
If any part of these TOU is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the TOU shall continue in effect.