Here at BlueAngel Photography New York, your privacy is very important to us and we take it very seriously.
• We reserve the right to post, from time to time, additional rules that apply to certain portions of the Service, or the Service as a whole. Such additional rules will be posted in the relevant portions of the Service, and are hereby incorporated into the Agreement by this reference. Your continued access, visitation and/or use of the Service constitutes your agreement to comply with these additional rules.
• Any delay or failure by us to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. No waiver by us shall have effect unless such waiver is set forth in writing, signed by us; nor shall any such waiver of any breach or default constitute a waiver of any subsequent breach or default.
• We may sub-license, transfer, sell or assign the Agreement, and/or any of our purported obligations hereunder, at any time to any person or entity, with or without notice. You may not sub-license, transfer, sell, or assign the Agreement at any time to any person or entity, and any attempt to do so will be null and void.
As used in this Agreement, the following terms have the following meanings:
“Claim” means any and all claims, disputes, demands, proceedings, cause of action, judgments, damages, liabilities, losses, costs or expense (including, but not limited to reasonable attorneys’ fees) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory.
“Content” means all text, articles, photographs, images, graphics, illustrations, creative, copy, artwork, video, audio, music, podcasts, ringtones, games, trademarks, trade names, service marks, and other brand identifiers, designs, plans, software, source and object code, algorithms, data, statistics, analysis, formulas, indexes, registries, repositories, and all other content, information, and materials available on or through the Service, whether posted, uploaded, transmitted, sent or otherwise made available by us, our licensors, vendors, and/or service providers, or by you, and/or other users or third parties, including any such Content uploaded manually or bookmarked by you and/or other users.
“Device” means any computer, tablet, mobile phone, television, or any other device capable of accessing the Service.
“Fees” mean any and all fees, expenses and charges, including applicable taxes and surcharges, for any Product, access to any portion(s) of the Service or the Service as a whole, or otherwise incurred through your activity on or through the Service and/or through your account/profile.
“Product” means any merchandise, item, product and/or service, including without limitation Content, contests and surveys, magazines and other publications that may be featured, mentioned, reviewed, described, auctioned, given away, rented, sold, distributed, or otherwise available on or through the Service, either by us or third parties.
“Service” means each website, mobile site, application, and/or other service, regardless of how distributed, transmitted, published, or broadcast provided by us that links to this document, including without limitation all social, community and public discussion areas, photo and video galleries, bulletin boards, forums, chats, blogs, personal/job search and other classified ads, and other features and functionality thereof.
“Third Party Providers” mean any third party unaffiliated with us that play a role in providing the Service and Products and enabling you to acquire, access, visit and/or use the Service and Products via your Device, including without limitation equipment, hardware and software manufacturers and providers, telephone, mobile, wireless, cable, and Internet network providers and carriers, sellers or providers of technology or Products, as well as vendors, service providers and others we retain to host, run, track, and otherwise administer portions of the Service,
“We”, “Us” and “Our”, whether capitalized or not, means Guild Magazine/BlueAngel Photography, its parent, subsidiaries and/or affiliates, and each of their respective officers, directors, members, employees, independent and sub-contractors, agents, representatives, successors and assigns.
“You” or “Your”, whether capitalized or not, means all those who access, visit and/or use the Service, whether acting as an individual or on behalf of an entity, including you and all persons, entities, or digital engines of any kind that harvest, crawl, index, scrape, spider, or mine digital content by an automated or manual process or otherwise. “You” and “Your” also includes your administrators, executors, successors and assigns.
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If you don’t agree to the terms contained in this User Agreement, you must immediately exit the Service.
Introduction and Definitions
Types of Data Acquired About You
• Personally Identifiable Information (PII). We may acquire PII that may include, in certain contexts, your name, postal address, zip code, email address, and telephone number. We also may acquire your IP address, User ID, and/or Device ID, which certain jurisdictions consider to be PII because it could be used to identify an individual or Device if it were combined with other identifying information.
• Sensitive PII. In certain circumstances, such as when purchasing a Product, you may provide a credit, debit, or payment account number, or other payment information which we recognize as more sensitive than other PII. We generally do not request on or through the Service other Data that is often considered “highly sensitive,” such as other financial account information (e.g., credit report information, bank account numbers), personal health information, or government issued identification numbers (e.g., social security number, drivers’ license number, or passport number), although we reserve the right to do so when such Data is necessary to offer you certain services.
• Anonymous Data. Some of the Data that we acquire cannot identify, distinguish or trace you or your Device, even if combined with other identifying information, and some Data that could be considered PII when combined with other identifying information is not used in a way that identifies, distinguishes or traces you or your Device, but is instead used in an anonymous way, often aggregated with other anonymous Data about other users.
Collection of Data While Visiting Our Website
We mostly receive PII because you provide it to us. For instance, when you enter a contest, complete a survey, purchase a Product, or register and/or set up an account/profile, you may be provided, or required to choose, a password and/or User ID, and you may provide a credit, debit, or payment account number, or other payment information, as well as your name, telephone number(s), email and/or street address. Other Data such as your age, gender, an avatar, and preferences may also be requested. In addition, we may acquire your Data when you contact us by telephone, postal mail, social media interaction or messaging (e.g., email, SMS, MMS, or similar technologies). We also may acquire information that you provide about other people, for example, when you use our “refer-a-friend” email feature or purchase one of our Products as a gift.
Data Automatically Collected. The Service may also automatically collect Data about you, your online behavior and your Device. The Data collected may include, without limitation, the make, model, settings, specifications (e.g., CPU speed, connection speed, browser type, operating system, device identifier) and geographic location of you and/or your Device, as well as date/time stamp, IP address, pages visited, time of visits, Content viewed, ads viewed, the site(s), application(s), destination(s), and/or service(s) you arrived from, and other clickstream data.
Be Careful Publicly Posting PII. Please be aware that Content and PII that you disclose in publicly accessible portions of the Service may be available to other users, and may also be made available outside the Service by third parties, so you should be mindful of all PII, especially sensitive PII, that you may wish to post.
How We May Use Your Data
• Processing Your Requests for Products. We may use your Data to process your request for Content and/or other Product(s). For example, if you subscribe to any of our Products we may use your e-mail address to send you a confirmation notice and your mailing address to send you the Product. Similarly, if you enter a contest, we will use your PII to notify you if you are a winner. If you enter a contest or submit Content to us (e.g., a “letter to our editors” or online review or comment), we may also publish your name, screen name, home town and other PII you have provided to us.
• Administering the Service. We also may use your Data for any lawful business purpose in connection with administering the Service, including without limitation for customer service, to help diagnose problems with servers, to improve Products that we offer by tailoring them to your needs, to gather broad demographic information, to analyze trends, to seek compatible advertisers, sponsors, clients and customers, and to track users’ movements around the Service and elsewhere on the web or across apps and/ devices. Your geographic location Data may specifically be used to show you Content (including advertising and sponsored messaging) based on geographic location.
• Access by Third Party Providers. We may also allow access to your Data by Third Party Providers that provide us with services, such as technical maintenance, market research, community and forums management, auction services, e-commerce, personal/job search and other advertising functionality, but only for the purpose of and to the extent necessary to provide those services. And if you choose to purchase or subscribe to any Product(s), we may forward your Data to Third Party Providers for services such as credit/debit card or other payment processing, order fulfillment, credit pre-authorization, and address verification. There are also times when you provide Data to us in areas of the Service that may be managed or participated in by one or more Third Party Providers. In such cases, the Data may be used by us and by such Third Party Provider(s), each pursuant to its own policies. While we may seek to require Third Party Providers to follow appropriate privacy policies and will not authorize them to use your Data except for the express purpose for which it is provided, we do not bear any responsibility for any actions or policies of third parties.
• Marketing Communications. We may also use your Data to communicate with you about new features, events or Products offered by us, Third Party Providers, our advertisers, and other companies and individuals with which we have a relationship.
Combining Your Anonymous Data with PII. We reserve the right to merge or co-mingle anonymous, non-personally identifiable Data about you, your offline and online behavior, and/or your Device (including its geographic location), with your PII for any lawful business purpose.
Sharing Your Data for Marketing; Opt-Out; How to Update Your Data
• Credit/Debit Card and Payment Account Data. We will not sell or rent your credit/debit card number or payment account Data. We may transfer such Data to Third Party Providers who need access to fulfill a transaction.
• Sharing Your Data for Marketing. Unless otherwise specified on the Service, we may sell or share your Data among our parent, subsidiaries, and affiliates and with other third parties who we think may offer or enable you to become aware of Products that may be of interest to you.
• How to Opt-Out of Sharing for Marketing. If you do not wish to have PII such as your name, email address, postal address or phone number shared with third parties for their marketing purposes, contact us. But note that, in order for us to properly administer the Service, we must continue to share your Data with Third Party Providers as described in Section IV(C) above (if you object to such sharing, you should not use the Service). Note also that this option to opt-out applies only to PII, and not Anonymous Data.
• How to Opt-Out of Marketing Messages from Us. If you do not wish to receive future marketing or other commercial messages from us, simply follow the unsubscribe instructions contained within the message you receive. But note that you may continue to receive certain communications from us that are necessary for the Service, such as renewal notifications, invoices, technical notices, updates, security alerts, and support and administrative service bulletins.
• How to Update Your PII. If you have registered on any part of the Service, please use the mechanism or contact information on the Service that allows you to change or update your member preferences, if available, to keep all such Data accurate and up-to-date. If no such mechanism or contact information is available on the Service, contact us.
Cookies and Related Technologies; Do Not Track (DNT)
• Cookies/Local Device Storage. The Service will at times place and/or store code or other types of information and/or software on your Device or within your browser, such as cookies (including flash cookies), locally shared objects, and HTML5 (collectively, “Local Device Storage”). We and Third Party Providers may use Local Device Storage in connection with the Service for any lawful business purpose, including without limitation to determine whether you have seen a particular advertisement before on the same or different Device and to otherwise control the display of ads, to track the movements of individual users through the Service and elsewhere on the web or across apps, devices, and geographic locations, to help diagnose problems with servers, to gather broad demographic information, to conduct research, to deliver editorial Content, to record registration and personalization information, and to otherwise administer the Service. For example, if you register on any part of the Service and are given the option to save your user name and password, we may provide this convenience to you via Local Device Storage. Local Device Storage may also collect and store your PII, which may be shared with our parent, subsidiaries, and affiliates and other third parties.
• You May Disable Local Device Storage. If you do not want Local Device Storage, your Device or browser may include an option that allows you to not accept it. However, if you disable Local Device Storage, some portions of the Service may not function properly.
• Tracking Technologies. In addition to Local Device Storage, we may use web beacons, web bugs, internet or pixel tags, clear gifs, digital fingerprinting (aka “Machine Identification”) and similar technologies (collectively, together with Local Device Storage, the “Tracking Technologies”) on the Service and in our communications with you, such as within e-mail and text messages and push notifications. We use Tracking Technologies to determine which of our messages have been opened by recipients, and for all or some of the same lawful business purposes we describe above for use of Local Device Storage.
• Do Not Track (DNT). Your browser setting may allow you to automatically transmit a “Do Not Track” (DNT) signal to websites and online services that you visit. There is no consensus among industry participants as to what DNT means in this context, and some browsers automatically apply DNT signals by default and therefore do not necessarily reflect our visitors’ choice as to whether they wish to receive advertisements tailored to their interests. As a result, like many websites and online services, we do not alter our practices when the Service receives a DNT signal from a visitor’s browser. As discussed below, you may opt out of the use of your Data for online behavioral advertising by third parties at any time. To find out more about DNT, please visit http://allaboutdnt.com.
Online Behavioral Advertising (OBA) and How to Opt-Out of OBA
• Opt-Out of OBA. If you do not want OBA, you may be able to opt-out by visiting http://www.aboutads.info, http://www.networkadvertising.org, http://www.youronlinechoices.com/uk/ and/or by clicking the “Ad Choices” icon that appears in advertising served through OBA. Please note that the option to opt-out applies only to tracking by Third Party Providers across this Service and other sites, applications, destinations, and services, and not tracking among pages within the Service itself. Residents of the European Economic Area (EEA) and Switzerland have additional options as described below in Section XI(B) to exercise choices with respect to OBA.
Transfer of Your Data Among Jurisdictions
Data Security and Notification
• Security Measures. We take commercially reasonable security measures to protect against unauthorized access to, or unauthorized alteration, disclosure or destruction of, PII that you share with us.
• No Liability for Breach. Because no data transmission is completely secure, and no system of physical or electronic security is impenetrable, we cannot guarantee the security of the Data that you send to us or the security of servers, networks or databases, and by using the Service you agree to assume all risk in connection with your Data. We are not responsible for any loss of such Data or the consequences thereof.
• Breach Notification. In the event that we believe the security of your Data in our possession or control may have been compromised, we may seek to notify you. If notification is appropriate, we may notify you by e-mail, push notification, or otherwise.
Notice to California Customers – Your Privacy Rights
• Shine the Light. California’s “Shine the Light” law, Civil Code Section 1798.83, gives California customers the right to prevent our disclosure of their personal information to third parties for those third parties’ direct marketing purposes, and requires certain businesses to respond to requests from California customers asking about the business’ practices related to disclosing personal information to third parties for the third parties’ direct marketing purposes. Alternately, such businesses may have in place a policy not to disclose personal information of customers to third parties for the third parties’ direct marketing purposes if the customer has exercised an option to opt-out of such information-sharing. We have such a policy in place. As discussed above in Section V(C), if you wish to opt-out of our sharing of your Data with third parties for the third parties’ direct marketing purposes or to find out more about your opt-out rights, please contact us.
• Online Erasure. California’s “Online Erasure” law, Business and Professions Code Sections 22580-22582, requires operators of certain websites and online services to allow registered users who are under the age of 18 and residents of California to request removal of Content they post. If you fit that description and posted Content on a section of our Service that is directed to minors, you may request removal of the Content by contacting us. In response to your request, we may elect to make the Content invisible to other users and the public (rather than deleting it entirely), in which case the Content may remain on servers we control and/or may be publicly available elsewhere if a third party copied and reposted the Content.
Notice to Residents of the European Economic Area (EEA) and Switzerland
• Purposes of Processing. As explained in Section IV above, we may process your Data to process your requests for Products, administer the Service, facilitate access by Third Party Providers, make marketing communications, facilitate health, safety and legal requests, respond to your requests in connection with employment opportunities, transfer or sell our business, and to combine data sets. As explained in Sections V – VII, we may also use, transfer and otherwise process Data acquired from you directly or by use of Tracking Technologies, for marketing purposes, including to serve you with Online Behavioral Advertising (OBA).
• Legal Basis for Processing. We serve you with OBA with your consent, and you have the right to withdraw consent at any time as described in Section VII above, by contacting us. We rely on the legitimate interest basis of processing for the other activities described in subsection (A) above because processing Data is necessary to provide you with our Products and to respond to your requests, our activities are reasonably expected by our visitors, and those activities do not unduly and negatively affect the privacy rights of our visitors. When you make a purchase, enter a sweepstakes, or engage in another type of transaction with us, we may process your Data to fulfill that contract.
• Transfers. As described in Section VIII above, your Data may be processed in or transferred to the U.S. or elsewhere in the world. We will ensure that transfers of personal data to a third country or an international organization are subject to appropriate safeguards.
• Individual Rights. If you are a resident of the EEA or Switzerland, you are entitled to the following rights. Contact us these rights. Please note: In order to verify your identity, we may require you to provide us with personal information prior to accessing any records containing Data.
• Right to access and rectify your Data. You have the right to obtain information about our processing of Data and a copy of your Data that we store. You have the right to request that we update your Data if it is inaccurate or incomplete.
• Right to request erasure of your Data. You have the right to have your Data erased from our systems if the Data is no longer necessary for the purpose for which it was collected or you withdraw consent and no other legal basis for processing exists.
• Right to restrict our processing of your Data. You have the right to restrict our processing if you contest the accuracy of the Data we store about you, our processing is deemed unlawful and you oppose erasure of your Data, or we no longer need the Data for the purposes for which we collected it but we must store it to comply with our legal obligations.
• Right to portability of your Data. You have the right to receive your Data and to transmit it to another controller where our processing is based on consent you gave us and was carried out by automated means.
• Right to object to our processing of your Data. You have the right to object to our processing where we process Data based on legitimate interest.
• Right to lodge a complaint. You have the right to lodge a complaint about our Data collection and processing actions to your data protection authority. Contact details for data protection authorities are available at http://ec.europa.eu/justice/article-29/structure/data-protection-authorities/index_en.htm.
EEA Representative. If you are a Data Protection Authority in the EEA with questions about this policy or the Service, please contact us directly.
As discussed above in Section V(B) and XI, you may opt-out of having PII such as your name, email address, postal address or phone number shared with third parties for their marketing purposes. If you wish to exercise this right, please contact us and state which of these items you wish to opt-out of sharing with third parties.
Also, as discussed above in Section V(D), if you have registered on any part of the Service and you wish to update or make changes to your PII on file with us, you may contact us.
Make sure to include enough information for us to help you, including for example your name, contact information, and the specific website, mobile site, application, and/or other service you’re contacting us about.
Note: Only inquiries about this policy or your PII should be sent to us. No other communications will be accepted or responded to.
For communications on other matters, please contact us through the means described on the Service, if available (for example, in the “Contact Us” section).
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• III. Registration and Account/Profile Creation
• Registration Information:
• You agree, represent, warrant, covenant and guarantee that all Registration Information provided by you is true, accurate, complete, up-to-date, and solely yours. You may not impersonate, imitate or pretend to be somebody else when registering and/or setting up an account/profile on the Service. If any of your Registration Information changes, you are responsible for updating it promptly by using the mechanism or contact information on the Service that allows you to change or update your Registration Information, if available. If no such mechanism or contact information is available on the Service, please notify us. WE SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM YOUR FAILURE TO MAINTAIN ACCURATE, COMPLETE OR UP-TO-DATE REGISTRATION INFORMATION, INCLUDING WITHOUT LIMITATION YOUR FAILURE TO RECEIVE CRITICAL INFORMATION. WE SHALL NOT BE RESPONSIBLE FOR VERIFYING YOUR REGISTRATION INFORMATION.
• We reserve the right at any time, with or without notice, to remove or require a change to or repossess any password and/or User ID that has been provided to you, any avatar you may be using or other Registration Information, or otherwise change the access means or methods for portions of the Service, the Service as a whole, or certain products and/or services.
• You will be solely responsible for maintaining the confidentiality of your Registration Information. You may not authorize or permit anyone else to access and/or use your Registration Information, or access, visit and/or use the Service by use of your account/profile and/or Registration Information. You may not access and/or use anyone else’s Registration Information, or access, visit and/or use the Service by use of anyone else’s account/profile and/or Registration Information. You may not sub-license, transfer, sell, rent or assign your Registration Information to any third party without our written approval. Any attempt to do so will be null and void and shall be considered a material breach of the Agreement.
• You are solely responsible for all access or visitation to, usage of, or activity on, your account/profile including, but not limited to, use of the account/profile by any person who uses your Registration Information, with or without authorization, or who has access to any Device on which your account/profile resides or is accessible. You acknowledge and agree that we may, and you specifically authorize us to, process all transactions, including without limitation purchases and/or registration for Products that are initiated by use of your Registration Information.
• If you have reason to believe that your account/profile is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your Registration Information), you are responsible for promptly changing the affected Registration Information by using the mechanism or contact information on the Service, if available, and/or close the account/profile. If no such mechanism or contact information is available on the Service, please immediately notify us.
• Fees and Payments:
• We and Third Party Providers may charge Fees for Products available on or through the Service, and/or for access to any portion(s) of the Service or the Service as a whole. You agree to pay all such Fees at the rates in effect for the billing period in which such fees and charges are incurred. Unless otherwise specified on the Service, all Fees will be quoted and charged in U.S. dollars. We and Third Party Providers reserve the right to change the amount of, or basis for determining, any Fees, and to institute new Fees.
• If you submit a credit, debit, or payment account number, or other payment information to us upon registration, at the time of purchase, or otherwise, you authorize, give us permission, and direct us to retain such information and to charge all Fees to such payment method.
• We may charge Fees in advance and on a daily, monthly, yearly, lump sum, or other basis. Fees for certain Products may be invoiced on your mobile carrier’s or other third party provider’s bill. We may, in our sole discretion, charge Fees to your designated payment method individually, or elect to aggregate Fees for some or all of your purchases. All Fees are due promptly and, unless otherwise indicated, are non-refundable. You must notify us about any billing problems or discrepancy within thirty (30) days after they first appear on your statement; otherwise, you waive any right to challenge or dispute such problem or discrepancy.
• If Fees cannot be charged to the payment method you designate, or payment is returned to us for any reason, including charge back, we reserve the right, in addition to our other remedies, to: (i) demand immediate payment of all outstanding Fees due to us from you; (ii) assess an additional 1.5 percent late charge, or the highest amount allowed by law, whichever is lower; (iii) take any and all lawful steps necessary to collect Fees owed to us, and you will be responsible for all costs and expenses incurred in connection with such collection activity, including collection fees, court costs, and attorneys’ fees; (iv) charge such Fees to any other payment method you have on file with us; and (v) terminate, discontinue, suspend, and/or restrict your account/profile, your ability to access, visit and/or use the Service or any portion thereof, and/or the Agreement, including without limitation any of our purported obligations hereunder.
• In addition, you are responsible for obtaining and maintaining at your own expense all equipment, hardware, software, and telephone, cable, mobile, wireless, Internet and other services necessary to access, visit and/or use the Service. If you are accessing the Service via a mobile Device, your mobile carrier may charge you fees for data, text messaging, and other mobile access or communications services.
Sensitive Information Disclaimer
• No Individual Advice. While you may freely discuss topics of interest to you, and the Service may include general Content relating to a range of topics, including medical, health, legal, tax, or financial issues, you should not rely on the Service for individual advice on such issues. Instead, we recommend that you talk in person with a qualified professional. You alone will bear the sole responsibility for evaluating the merits and/or risks associated with use of Content obtained on or through this Service before making any decisions based on such Content.
• No Professional Health, Legal, or Tax or Financial Advice. THE CONTENT AVAILABLE ON OR THROUGH THIS SERVICE IS IN NO WAY INTENDED TO AND SHALL NOT BE CONSTRUED TO: (A) CONSTITUTE PROFESSIONAL MEDICAL, HEALTH, LEGAL, TAX, OR FINANCIAL ADVICE; (B) RECOMMEND, ENDORSE, OR ADVISE REGARDING ANY FINANCIAL INSTRUMENT OR INVESTMENT STRATEGY; OR (C) DIAGNOSE, CURE, OR TREAT ANY MEDICAL, HEALTH OR OTHER CONDITION. ALWAYS SEEK THE ADVICE OF A QUALIFIED PROFESSIONAL. FOR EXAMPLE, SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER PRIOR TO STARTING ANY NEW DIET AND ASK YOUR DOCTOR ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. IN ADDITION TO ALL OTHER LIMITATIONS AND DISCLAIMERS IN THE AGREEMENT, WE AND THIRD PARTY PROVIDERS DISCLAIM ANY LIABILITY OR LOSS IN CONNECTION WITH THE CONTENT OBTAINED ON OR THROUGH THIS SERVICE.
Rules of Usage
• Use of the Service by You:
• The Service is not intended for users under the age of 16, and such users are expressly prohibited from registering for any Products such as contests or surveys, making any purchases, or registering for any aspect of the Service, and by taking such actions you agree, represent, warrant, covenant and guarantee that you are 16 years of age or older. PARENTS: Note that parental controls (such as computer hardware, software, and filtering services) are available that may help limit access to material deemed inappropriate for minors.
• You shall ensure that the Device and all equipment, hardware, software, products and/or services you use to access, visit, or use the Service does not disturb or interfere with our operation of the Service, or impede or interfere with others’ access, visitation and/or use of the Service. We reserve the right, in addition to our other remedies, with or without notice, to immediately disconnect from the Service any Device or other equipment, hardware, software, product and/or services causing interference with us, Third Party Providers, the Service or any Content.
• If you provide to us the number for a Device, or we obtain the device identifier for a Device you are using, you agree, represent, warrant, covenant and guarantee that such Device is registered in your name and owned by you, or that you have permission of the Device owner(s).
• Unless otherwise specified, the Service is intended for your personal, non-commercial use only. You may not access and/or store the Service or any of its Content except for personal, non-commercial use. You are solely responsible for all usage of, or activities on, the Service by you and by those you authorize or allow to use, or provide access to, the Service, for example, by authorizing or allowing access to your account/profile or any Device on which the Service resides or is accessible.
• You acknowledge that we have not reviewed and do not necessarily endorse the Content of sites, applications, destinations or services linked to or accessible from this Service and are not responsible for the Content or actions of any other sites, applications, destinations or services. Your linking to or accessing any other site, application, destination or service is at your sole risk.
• You must comply with all local, state, federal, provincial, national, international, and foreign laws, rules, and regulations in accessing and using the Service, and will immediately notify us if you learn of or suspect a security breach or any illegal activity in connection with the Service.
• You must comply with all applicable import and export control laws, rules, and regulations of the United States and other countries, and you must not transfer, by electronic transmission or otherwise, any Content subject to restrictions under such laws, rules, or regulations to a site, application, destination, location, person or entity, or for an end use, prohibited thereby. You will not post, upload, transmit, send or otherwise make available any Content on or through the Service that cannot be exported without prior government authorization or notification, including without limitation certain types of encryption software.
• You agree, represent, warrant, covenant and guarantee that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
• Content that is provided by us and authorized Third Party Providers, as well as the organization, design, compilation, and “look and feel” of the Service, and all advertising thereon, is protected by local, state, federal, provincial, national, international, and foreign copyright, trademark and other intellectual property laws, rules, and regulations, and is the property of us or such authorized Third Party Providers.
• Certain Content may be identified as available to you on or through the Service for download, installation, and/or streaming on your Device, and via Real Simple Syndication (RSS). Such Content is subject to the same terms, conditions, limitations and restrictions applicable to all Content provided by us and authorized Third Party Providers. You must, in addition to all of your other obligations, use such Content only to the extent expressly authorized for the particular Content, and you may not use such Content in a manner that exceeds such authorization.
• Prohibitions on Use of the Service:
• Absent explicit prior written consent in certain situations, you may not, nor may you allow, enable, authorize, instruct, encourage, assist, suggest, inform, or promote that others, directly or indirectly, do any of the following for any reason:
• access and/or use anyone else’s Registration Information, or access, visit and/or use the Service by use of anyone else’s account/profile and/or Registration Information;
• make any commercial, advertising, promotional, or marketing use of the Service and/or Content obtained on or through the Service, except as permitted by the Copyright Act or other law or as expressly permitted in writing by the Agreement, us or the Service;
• impersonate, imitate or pretend to be somebody else, by setting up different accounts/profiles or otherwise, or falsely state, represent, or imply any affiliation, association, or connection with a person or entity when using the Service;
• authorize or permit anyone else to access and/or use your Registration Information, or access, visit and/or use the Service by use of your account/profile and/or Registration Information;
• falsely state, represent, or imply any affiliation, association, or connection between any person or entity, including without limitation you, your company, or your site, application, destination or service, with the Service, us, or Third Party Providers;
• post, upload, transmit, send or otherwise make available on or through the Service any Content that constitutes junk mail, spam, pyramid schemes, chain letters, phishing, advertising, and/or commercial offers, including without limitation touting or recommending any stocks or particular security, portfolio of securities, transaction or investment strategy;
• repeatedly post, upload, transmit, send or otherwise make available on or through the Service the same Content multiple times in a day, week, or month;
• post, upload, transmit, send, or otherwise make available on or through the Service any unsolicited bulk communication;
• forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content you may post, upload, transmit, send, or otherwise make available on or through the Service;
• use any bots, cheats, macros, scripts, or run Maillist, Listserv or any form of auto-responder, or use any other automated process, or engage in meta-searching or periodic caching of information, to access, visit and/or use the Service, including without limitation to post, upload, transmit, send, or other make available Content on or through the Service;
• copy, harvest, crawl, index, scrape, spider, mine, gather, extract, compile, obtain, aggregate, capture, or store any Content on or through the Service, including by an automated or manual process or otherwise, if we have taken steps to forbid, prohibit, or prevent you from doing so;
• engage in personal attacks, use any language that is, or post, upload, transmit, send or otherwise make available on or through the Service any Content about an individual that is, abusive, intimidating, bullying, harassing, hateful, violent, or that victimizes, degrades, defiles or disparages an individual, on or through the Service;
• use any language that is, or post, upload, transmit, send or otherwise make available on or through the Service any Content about a group that is, hateful, violent, or that victimizes, degrades, defiles or disparages any group based on race, gender, gender identity, religion, national origin, disability, sexual orientation, or age, or otherwise engage in what we deem to be racism, sexism, ageism, religious intolerance, bigotry, ethnic slurs, or homophobia;
• use any language, or post, upload, transmit, send or otherwise make available on or through the Service any Content that may or is intended to enable, authorize, instruct, encourage, assist, suggest, or promote activities that incite violence, constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal, provincial, national, international, or foreign law, rule or regulation (e.g., drug use, underage drinking), including without limitation defamation, child pornography, fraud, or invasion of privacy;
• stalk others on or through the Service, or using information obtained on or through the Service, or otherwise contact other users in the physical world without their permission using information obtained on or through the Service;
• use any language that is, or post, upload, transmit, send or otherwise make available on or through the Service any Content that is, or depicts anyone engaged in any act deemed by us to be, pornographic, obscene, sexually explicit, perverse, illicit, indecent, lewd, or lascivious;
• engage in “cyber-sex” (i.e., “virtual sex”) or “sexting” or solicit another to participate in “cyber-sex” or “sexting” on or through the Service;
• use any language, or post, upload, transmit, send or otherwise make available on or through the Service any Content that we deem to be offensive, immoral, vulgar, crude, harmful, violent, deceptive, or otherwise inappropriate;
• post, upload, transmit, send or otherwise make available on or through the Service any Content that you are bound to not disclose, by agreement, contract, fiduciary duty, employment relationship, or otherwise, such as insider information, proprietary and/or confidential information, or trade secrets;
• provide professional advice or post, upload, transmit, send or otherwise make available on or through the Service any Content intended to provide professional advice about medical, health, legal, tax, financial, or investment issues, or to solicit, recommend, or endorse any securities or financial instruments, or suggest that a particular transaction or investment strategy is suitable for you or any specific person;
• discuss the mechanics of sweepstakes, contests, auctions, flash sales or similar promotions available on or through the Service, or attempt to manipulate, corrupt or otherwise affect the outcome of, any such promotions, or post, upload, transmit, send, or otherwise make available on or through the Service any Content that may or is intended to enable, authorize, instruct, encourage, assist, suggest, inform, or promote activities that may subvert or not comply with the rules, restrictions, and/or limitations applicable to such promotions;
• post, upload, transmit, send, or otherwise make available on or through the Service any Content that illustrates, depicts anyone engaged in, or is intended to enable, authorize, encourage, assist, suggest, inform, promote or give instructions for weapon and/or explosive manufacture or use;
• post, upload, transmit, send or otherwise make available on or through the Service any Content that infringes, violates, or breaches the copyright, trademark, trade secret or any other personal or proprietary right of us, Third Party Providers, other users, and/or any third party;
• copy, reproduce, modify, change, edit, crop, alter, revise, adapt, translate, enhance, reformat, remix, rearrange, resize, create derivative works of, move, remove, delete, or erase any copyright, trademark, or other proprietary legends, symbols, marks, or notices on the Service, or attempt to circumvent any mechanisms for preventing the unauthorized reproduction or distribution of Content;
• copy, reproduce, modify, change, edit, crop, alter, revise, adapt, translate, enhance, reformat, remix, rearrange, resize, create derivative works of, move, remove, delete, erase, reverse engineer, decipher, decompile, disassemble, store, cache, aggregate, publish, post, display, distribute, broadcast, perform, transmit, rent, sell, share, sublicense, syndicate, or otherwise provide to others, or use any Content obtained on or through the Service, in whole or in part, except as permitted by the Copyright Act or other law or as expressly permitted in writing by the Agreement, us or the Service;
• copy, reproduce, modify, change, edit, crop, alter, revise, adapt, translate, enhance, reformat, remix, rearrange, resize, create derivative works of, move, remove, delete, erase, reverse engineer, decipher, decompile, disassemble, or otherwise attempt to derive any source code or underlying ideas or algorithms of the Service, in whole or in part, including without limitation any Content, communications, messaging, programming, hardware, functionality, or features on our networks, servers or databases, or otherwise reduce the Service, in whole or in part, to a human perceivable form;
• access, other than connecting to our servers by http requests using a browser, or disrupt, overwhelm, attack, hack, destroy, damage, disable, impair, repossess, alter, tamper or interfere with, the Service including without limitation any Content, communications, messaging, programming, hardware, functionality, or features on our networks, servers or databases, or impede or interfere with others’ access, visitation, and/or use of the Service, in any way or by any means, whether remotely or by access to our personal property, premises, or otherwise, including, without limitation, by using administrator passwords or by masquerading as an administrator while using the Service or otherwise; or
• post, upload, transmit, send or otherwise make available on or through the Service any software disabling devices, time bombs, keystroke loggers, Trojan horses, cancelbots, viruses, worms, bugs, corrupted files, spyware, adware, malware, malicious programs or code, or devices or defects of similar nature.
• CAUTION: ANY ATTEMPT TO DO ANY OF THE FOREGOING PROHIBITED ACTS, OR TO OTHERWISE UNDERMINE THE OPERATION OF THE SERVICE, MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAW. SHOULD SUCH AN ATTEMPT BE MADE, WE RESERVE THE RIGHT, IN ADDITION TO OUR OTHER REMEDIES, TO SEEK DAMAGES (INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES) FROM ANY SUCH INDIVIDUAL OR ENTITY TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING CRIMINAL PROSECUTION.
• Comments on the Service are Not Necessarily Endorsed by Us:
We do not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, or statements posted, uploaded, transmitted, sent or otherwise made available on or through the Service. Any Content posted, uploaded, transmitted, sent or otherwise made available on or through the Service, including advice and opinions, are the views and responsibility of those who post the Content and do not necessarily represent our views or the views of our licensors, vendors, and/or service providers. You agree that we and our licensors, vendors, and/or service providers are not responsible, and shall have no liability to you, with respect to any Content posted, uploaded, transmitted, sent or otherwise made available on the Service, including Content that violates the Agreement.
• Use of Content Supplied by You:
• Except as expressly provided otherwise in the Agreement, you or the owner of any Content you post, upload, transmit, send or otherwise make available on or through the Service retains ownership of all rights, title, and interests in such Content. However, by posting, uploading, transmitting, sending or otherwise making available Content, registering for the Service, entering a sweepstakes or contest, or engaging in any other form of communication with us (on or through the Service or otherwise) you irrevocably grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide right and license to copy, reproduce, modify, edit, crop, alter, revise, adapt, translate, enhance, reformat, remix, rearrange, resize, create derivative works of, move, remove, delete, erase, reverse-engineer, store, cache, aggregate, publish, post, display, distribute, broadcast, perform, transmit, rent, sell, share, sublicense, syndicate, or otherwise provide to others, use, or change all such Content and communications, in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so. Among other things, this means that we may use any ideas, suggestions, developments, and/or inventions that you post, upload, transmit, send or otherwise make available in any manner as we see fit without any compensation or attribution to you. In any event, you should make copies of or otherwise back-up any and all Content, personal data or communications you post, upload, transmit, send or otherwise make available on or through the Service that you may wish to retain.
• Please be aware that Content you disclose in publicly accessible portions of the Service may be available to other users, so you should be mindful of personally identifiable information and sensitive Content you may wish to post. WE ARE NOT RESPONSIBLE FOR THE CONSEQUENCES OF CONTENT OR PERSONALLY IDENTIFIABLE INFORMATION YOU POST, UPLOAD, TRANSMIT, SEND OR OTHERWISE MAKE AVAILABLE ON THE SERVICE.
• Editing, Additions and Deletions:
We reserve the right, but undertake no duty, in our sole discretion, with or without notice, to review, edit, move, add, delete, or otherwise change any features, functionality, and/or Content available on or through, or downloadable from, the Service, including without limitation any Content in your account/profile, or any of your messages, posts, or threads. This includes updates or upgrades to Content, automatic or otherwise. You agree to accept, and to take no action to interfere with, automatic upgrades or updates. Any changes to the Service may not be consistent across all platforms or Devices. If you do not refresh the Service after each such change, or download the update(s) or upgrade(s), your experience may not reflect the most recent features, functionality, and/or Content, for which we disclaim any and all responsibility and liability. If any changes require you to obtain a new, additional, or different Device or other equipment, hardware, software, and/or telephone, mobile, wireless, Internet and/or other services, you are solely responsible for any additional expense. Even after Content is removed from your account/profile, your messages, post(s), and/or threads, regardless of whether such removal or deletion is by you or by us, copies of that Content may be retained and/or remain viewable by us, our licensors, vendors, service providers and/or other third parties, including other users.
• Copyright Complaints:
• We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our discretion, in addition to our other remedies, terminate, discontinue, suspend and/or restrict the account/profile or ability to access, visit, and/or use the Service of users who infringe the copyright rights of others, and we may choose to remove, delete, erase, or disable access to Content deemed to be infringing.
• We may take the actions set forth in Section IV(4)(A) even for a single act of infringement. It is our policy to terminate the access of repeat infringers. If you are the subject of any of the aforementioned actions, you agree not to attempt to establish a new account/profile with the Service under any name, real or assumed, or otherwise attempt to access, visit, or use the Service. Please note that to the extent the Service or portions thereof do not limit usage to subscribers or account holders, we are not able to terminate, discontinue, suspend and/or restrict users who are neither subscribers nor account holders. Nothing herein shall limit our remedies in law or equity or by contract.
• If you have reason to believe that your Content has been copied and/or is accessible on the Service in a way that constitutes copyright infringement, or that the Service contains links or other references to another site, application, destination or service that contains Content or activity that infringes your copyright rights, you may notify us by providing a document via fax, first class U.S. mail, or e-mail that includes the following information (as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. sec. 512) to our copyright agent set forth below:
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at the Service are covered by a single notification, a representative list of such works at the Service;
• Identification of the copyrighted work that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate such copyrighted work;
• Information reasonably sufficient to enable us to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
• A statement that the complaining party has a good faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• 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.
• IMPORTANT: MISREPRESENTATIONS MADE IN A NOTICE CLAIMING THAT CONTENT OR ACTIVITY IS INFRINGING VIOLATES THE DIGITAL MILLENNIUM COPYRIGHT ACT AND MAY EXPOSE YOU TO LIABILITY FOR DAMAGES (INCLUDING COSTS AND ATTORNEYS’ FEES). COURTS HAVE FOUND THAT YOU MUST CONSIDER COPYRIGHT DEFENSES, LIMITATIONS OR EXCEPTIONS BEFORE SENDING A NOTICE. ACCORDINGLY, IF YOU ARE NOT SURE WHETHER CONTENT RESIDING ON OUR SERVICE INFRINGES YOUR COPYRIGHT, WE SUGGEST THAT YOU FIRST CONTACT AN ATTORNEY. IN ADDITION, PLEASE DETERMINE WHETHER THE CONTENT YOU ARE SENDING A NOTICE ABOUT IS ACTUALLY RESIDING ON OUR SERVICE BEFORE SENDING THE NOTICE.
• PLEASE NOTE: THE INFORMATION WE PRESENT HERE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE.
Merchandise, Products and/or Services Available on or through the Service:
• We Receive Compensation. WE MAY RECEIVE A COMMISSION, FEE, AND/OR OTHER COMPENSATION ON SOME PURCHASES MADE ON, THROUGH, OR LINKED FROM THE SERVICE.
• Product Orders, Prices, Quantities. Images available of Products may not accurately capture the actual appearance, color, look and feel, specifications, features, or functionality of such Products. Nothing on the Service constitutes a binding offer to sell, rent, auction, distribute or give away any Products. We reserve the right at any time after receipt of your order or bid to accept or decline such order or bid, or any portion thereof, or to not ship to particular addresses, even after your receipt of an order or bid confirmation or after you have been charged. Any prices displayed on the Service are quoted in U.S. dollars and are intended to be valid and effective only in the United States. In the event Products are listed at an incorrect price, we have the right to refuse or cancel orders or bids placed at the incorrect price, regardless of whether the order or bid has been confirmed or you have been charged. If your order or bid is canceled by us after you have been charged, we will issue a credit. We reserve the right at any time to limit the quantities of Products which you, your family or any group seek.
• Limitations of Liability. EXCEPT FOR PRODUCTS THAT SPECIFICALLY IDENTIFY US AS THE SELLER, ALL TRANSACTIONS FOR PRODUCTS AVAILABLE ON OR THROUGH THE SERVICE SHALL BE BETWEEN THE USER AND THE THIRD PARTY PROVIDER WITHOUT ANY INVOLVEMENT BY US. IF YOU BID ON, PURCHASE, ORDER, OBTAIN OR RESEARCH PRODUCTS ON OR THROUGH THE SERVICE, NOTE THAT WE ASSUME NO RESPONSIBILITY FOR THE QUALITY, QUANTITY, SIZE, CHARACTER, FITNESS FOR A PARTICULAR PURPOSE, SPECIFICATIONS, FEATURES, FUNCTIONALITY, SAFETY, OR LEGALITY OF SUCH PRODUCTS, THE TRUTH OR ACCURACY OF THE LISTINGS, OR THE ABILITY OF THE SELLERS TO SELL, SHIP, OR OTHERWISE PROVIDE SUCH PRODUCTS. YOU AGREE THAT WE ARE NOT RESPONSIBLE, AND SHALL HAVE NO LIABILITY TO YOU, WITH RESPECT TO ANY PRODUCTS AVAILABLE ON OR THROUGH THE SERVICE, INCLUDING ILLEGAL, OFFENSIVE OR ILLICIT ITEMS, EVEN ITEMS THAT VIOLATE THE AGREEMENT.
• Warranty Claims. In the Event of any failure of a Product to conform to any applicable warranty, you may be able to notify the applicable Third Party Provider to receive a refund of all or part of the applicable Fees, if any (to the maximum amount permitted by applicable law, and neither we nor our Third Party Providers will have no other warranty obligation whatsoever with respect to a Product).
• Your Usage Obligations. Unless expressly permitted by us, all Products are intended for your personal, non-commercial use only, and you may not rent, lease, lend, sell, share, provide, give or otherwise transfer a Product to a third party. You are solely responsible for all usage of Product by you and by those you authorize or allow to use the Product. You must use the Products in compliance with any and all applicable international and U.S. laws, rules and regulations, and you must not make improper use of the Product, as determined in our sole reasonable discretion.
You agree to indemnify, defend and hold harmless us from and against any and all Claims which may arise out of or are in any way connected with your access, visitation and/or use of the Service, your Content, unauthorized use of Content obtained on or through the Service, breach or alleged breach of the Agreement, or from any of your acts or omissions in connection with the Service.
• Disclaimer of Warranty and Limitation of Liability:
• YOU ACKNOWLEDGE THAT YOU ARE USING THE SERVICE AND ANY PRODUCTS AT YOUR OWN RISK. THE SERVICE AND PRODUCTS ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND ON AN “AS AVAILABLE” BASIS, AND WE DO NOT MAKE, AND WE HEREBY EXPRESSLY DISCLAIM, ANY AND ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND GUARANTEES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY PRODUCTS, CONTENT CONTAINED THEREIN OR PROVIDED BY US, OR THE SERVICE. WE DO NOT REPRESENT, WARRANT, COVENANT OR GUARANTEE THAT ACCESS TO ANY PRODUCT, THE SERVICE AND/OR COMMUNICATIONS OR MESSAGING FROM OR TO US OR YOU WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE, OR THAT THERE WILL BE NO FAILURES, DELAYS, INACCURACIES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED CONTENT, OR THAT NO SOFTWARE DISABLING DEVICES, TIME BOMBS, VIRUSES, WORMS, BUGS, OR DEVICES OR DEFECTS OF SIMILAR NATURE WILL BE TRANSMITTED ON OR THROUGH THE SERVICE, AND WE WILL NOT BE LIABLE IN THE EVENT OF ANY SUCH OCCURRENCE. WE FURTHER DO NOT REPRESENT, WARRANT, COVENANT OR GUARANTEE THAT ALL PORTIONS OF THE SERVICE, OR THE SERVICE AS A WHOLE, CAN BE ACCESSED VIA ALL DEVICES, OR VIA ALL CARRIERS AND SERVICE PLANS OR IS AVAILABLE IN ALL GEOGRAPHIC LOCATIONS.
• WE ARE NOT RESPONSIBLE FOR INCOMPLETE, INCORRECT, LOST, DELAYED, LATE, MISDIRECTED, GARBLED, DAMAGED, ILLEGIBLE, UNDELIVERABLE, OR INCOMPLETELY RECEIVED PRODUCTS, PORTIONS OF THE SERVICE, OR COMMUNICATIONS OR MESSAGING FROM OR TO US OR YOU FOR ANY REASON, INCLUDING BY REASON OF HARDWARE, SOFTWARE, BROWSER, NETWORK, COMMUNICATIONS SYSTEM FAILURE, MALFUNCTION, DELAY, OR CONGESTION, OR ANY INCOMPATIBILITY AT OUR SERVERS OR ELSEWHERE, OR FOR ANY OTHER TECHNICAL PROBLEMS, HUMAN ERROR, ANY FORM OF ACTIVE OR PASSIVE FILTERING BY A USER’S DEVICE OR ACCESS PROVIDER, INSUFFICIENT SPACE ON USER’S DEVICE OR ACCOUNT/PROFILE, OR ANY OTHER CAUSE OR COMBINATION THEREOF.
• WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ALLEGEDLY SUSTAINED ARISING OUT OF THE AGREEMENT, THE SERVICE, THE SALE, PURCHASE, RECEIPT, USE OR MISUSE OF ANY PRODUCT, YOUR ABILITY OR INABILITY TO ACCESS, VISIT AND/OR USE THE SERVICE OR ANY PRODUCT, INCLUDING DAMAGE TO YOUR DEVICE, OR FOR SOFTWARE DISABLING DEVICES, TIME BOMBS, VIRUSES, WORMS, BUGS, OR DEVICES OR DEFECTS OF SIMILAR NATURE ALLEGED TO HAVE BEEN OBTAINED FROM THE SERVICE, YOUR ACCESS, VISITATION, AND/OR USE OF, OR RELIANCE ON, THE SERVICE OR ANY OF THE PRODUCTS AVAILABLE ON OR THROUGH THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR LIABILITY TO YOU EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU DURING THE ONE MONTH PERIOD IN WHICH THE CLAIM AROSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE AGREEMENT IS NOT SUBJECT TO THE LAWS OF SUCH STATES, BUT TO THE EXTENT A CLAIM IS BROUGHT THEREIN, OUR LIABILITY AND WARRANTIES ARE LIMITED TO THE EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”.
• Termination or Suspension of the Service, Your Use of the Service, and/or the Agreement:
• We reserve the right, in addition to our other remedies, to terminate, discontinue, suspend and/or restrict the Service, your account/profile, your ability to access, visit and/or use the Service or any portion thereof, and/or the Agreement, including without limitation any of our purported obligations hereunder, for any or no reason, with or without notice. In the event of any termination or discontinuation of your account/profile, your ability to access, visit and/or use the Service or any portion thereof, and/or the Agreement, we reserve the right, in addition to our other remedies, to reassign, and/or allow another user to use, your account/profile credentials, including without limitation any password and/or User ID.
• Even if the Service, your ability to access, visit and/or use the Service or any portion thereof, and/or the Agreement is terminated, discontinued, suspended or restricted, by you or by us, we have no obligation to (but we may in our discretion) remove any Content, and therefore copies of all information with regard to your account/profile and/or Content you may have posted, uploaded, transmitted, sent or otherwise made available on or through the Service, may be retained and/or remain viewable by us, Third Party Providers and/or other third parties, including other users. Nevertheless, we have no obligation to retain, store, or provide you with any information with regard to your account/profile and/or Content you may have posted, uploaded, transmitted, sent or otherwise made available on or through the Service. All provisions of the Agreement shall survive the termination or expiration of the Agreement and/or your account/profile.
Communications to You:
• The communications between you and us usually use electronic means, whether you access, visit or use the Service, send us messages, or whether we post notices on the Service or communicate with you via messaging. For contractual purposes, you (a) consent to receive communications from us in electronic form; and (b) agree that all notices, documents, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. Your consent to receive communications and do business electronically, and your agreement to do so applies to all of your interactions and transactions with us.
• You understand and agree that joining the Service may include receiving certain communications from us, such as transactional or relationship messages, and/or messages about your account/profile, and that these communications are considered part of your account/profile and you may not be able to opt out of receiving them without ceasing to be a registered user of the Service.
• Third Party Providers:
CERTAIN THIRD PARTY PROVIDERS MAY REQUIRE THAT YOU AGREE TO THEIR ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES. YOUR COMPLIANCE WITH ANY SUCH ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES IS SOLELY YOUR RESPONSIBILITY AND WILL HAVE NO EFFECT ON YOUR CONTINUING OBLIGATION TO COMPLY WITH THE AGREEMENT WHEN USING THE SERVICE. WE SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE ACTS OR OMISSIONS OF THIRD PARTY PROVIDERS. We have agreements with some of these Third Party Providers that require us to make certain disclosures and pass along certain responsibilities to you. For such Third Party Providers, you specifically acknowledge and agree that: (i) the Agreement is between us and you; the Third Party Providers are not parties to the Agreement; (ii) the Third Party Providers and their parent, subsidiaries and affiliates are intended third party beneficiaries of the Agreement and upon your acceptance of the terms and conditions of the Agreement, the Third Party Providers will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you; (iii) any license(s) granted to you hereunder by a Third Party Provider in connection with the Service is limited to a non-transferable license to use the Service on the particular Device authorized by the applicable Third Party Provider that you own or control and as permitted by such Third Party Provider’s applicable usage rules; (iv) Third Party Providers have no obligation whatsoever in connection with the functionality or Content of the Service, or to furnish any maintenance or support services with respect to the Service; (v) in the event of any failure of the Service to conform to any applicable warranty, you may be able to notify the applicable Third Party Provider to receive a refund of all or part of the amount you paid for the applicable portion of the Service, if any (to the maximum amount permitted by applicable law, Third Party Providers will have no other warranty obligation whatsoever with respect to the Service); (vi) Third Party Providers reserve the right to audit possible unauthorized commercial use of its Content at any time; and (vii) Third Party Providers are not responsible for addressing any Claims by you or a third party relating to the Service or your possession, access, visitation and/or use of the Service, including without limitation (a) product liability Claims; (b) any Claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) Claims arising under consumer protection or similar legislation; and (vii) in the event of any Claim that the Service or your possession, access, visitation and/or use of the Service, infringes such third party’s intellectual property rights, Third Party Providers are not responsible for the investigation, defense, settlement and/or discharge of such Claim.
• Arbitration, Waiver of Class Action Suits, and Dispute Resolution:
• The Service is based in the United States. It is not designed, customized or intended for, or directed to, any other country. Those who choose to access, visit and/or use the Service do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. We make no representation, warranty, covenant or guarantee that the Service, or any Products available on or through the Service are appropriate, available, or legal in any particular geographic location.
• In the event you have any Claim against us with regard to any aspect of your relationship with us, your sole remedy is to stop using your account/profile and/or the applicable Service, including without limitation cancelling any Fee-based Product.
• You agree that in the event of any such Claim, you will first contact us and make a good faith sustained effort to resolve the Claim before resorting to more formal means of resolution, including without limitation arbitration or any court action.
• IN THE EVENT OF ANY CLAIM THAT CANNOT BE RESOLVED, YOU OR WE MAY ELECT TO ARBITRATE SUCH CLAIM IN ACCORDANCE WITH THE TERMS OF THIS ARBITRATION PROVISION RATHER THAN LITIGATE THE CLAIM IN COURT. ARBITRATION MEANS YOU WILL HAVE A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY.
• Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST PURCHASE, SUBSCRIBE, OR REGISTER TO OR FOR THE APPLICABLE PRODUCT OR OTHERWISE ACCESS, VISIT AND/OR USE THE SERVICE. YOUR WRITTEN NOTIFICATION TO US MUST INCLUDE YOUR NAME AND ADDRESS AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE CLAIMS WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR YOUR USE OF THE SERVICE. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
• Restrictions: YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE SUCH CLAIM. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER USERS, SUBSCRIBERS, REGISTRANTS OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE. ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY CLAIM WITH US UNLESS THE STATUTE UNDER WHICH THEY ARE SUING PROVIDES OTHERWISE.
• Exclusions from Arbitration. WE AND YOU AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION (“EXCLUDED CLAIMS”): (1) ANY CLAIM FILED BY YOU OR US THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER USER OR SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY CLAIM OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; (3) ANY CLAIM RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE.
• SPECIAL NOTE REGARDING ARBITRATION FOR CALIFORNIA CUSTOMERS: IF YOU ARE ACCESSING THE SERVICE FROM A RESIDENCE IN CALIFORNIA, WE WILL NOT SEEK TO ENFORCE THE ARBITRATION PROVISION ABOVE UNLESS WE HAVE NOTIFIED YOU OTHERWISE.
• You further agree that for Excluded Claims and other Claims in which arbitration is denied: the restrictions set forth in Section 14(F) above shall apply; regardless of where you access, visit and/or use the Service, such Claims shall be governed and construed in accordance with the laws of the United States, in the particular State where the Service is headquartered, without regard to any principles of conflict of laws; and will be resolved exclusively by a state or federal court located in the U.S. State where the Service is headquartered, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non-conveniens. Should there be a conflict between the laws of the U.S. State where the Service is headquartered, and any other laws, the conflict will be resolved in favor of the laws of such U.S. State where the Service is headquartered.
• If for any reason an arbitrator or court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be invalid or unenforceable, that provision or portion will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of the Agreement will continue to be valid and enforceable in full force and effect.