Updated April 15, 2023
The Terms for the Site represent a legally binding agreement between you, an individual user or a single entity (collectively or individually “Users”), and Company regarding your use of the Site. Together, Users and Company are each referred to herein individually as a “Party” or collectively as the “Parties.” When using the Site, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time on the Site (the “Guidelines”). All Guidelines are at this moment incorporated by reference into these Terms.
BEFORE USING THE SITE, PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY ACCESSING, BROWSING, USING AND/OR REGISTERING WITH THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING THE GUIDELINES, AND ANY FUTURE MODIFICATIONS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SITE.
1. Children. You must be 18 years of age or older to become a member of the Site. While individuals under the age of 18 may utilize the Site, they must do so only with the involvement of a parent or legal guardian, under such persons account and otherwise subject to these Terms. Company does not seek through this Site to gather personal information from or about persons under the age of 13 without the consent of a parent or legal guardian. NOTICE: Visit www.OnGuardOnline.gov for tips from the Federal Trade Commission on protecting children’s privacy online.
3. Modification of the Terms. Company reserves the right, at our discretion, to change, modify, add or remove portions of these Terms at any time for any reason, and we may notify you of such changes through any of a variety of means, including a change to the “Last Updated” date set forth above and other reasonable means to be determined at our discretion. All changes shall be effective immediately. Please check these Terms periodically for changes. Your continued use of the Site after the posting of changes constitutes your binding acceptance of such changes.
4. Site Access, Linking. Company grants you permission to use its Site as set forth in these Terms, provided that and for so long as (i) you use the Site solely for your personal, non-commercial use; (ii) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise use or exploit any portion of the Site in any medium without Company’s prior written authorization; (iii) you do not alter or modify any part of the Site other than as may be reasonably necessary to use the Site for its intended purposes; (iv) you do not engage in any of the prohibited uses as described in these Terms; and (v) you otherwise fully comply with these Terms. The Site is controlled and offered by Company from its facilities in Connecticut in the United States of America. Company makes no representations that the Site is appropriate or available for use in other locations. If you are accessing or using the Site from other jurisdictions, you do so at your risk, and you are responsible for compliance with local laws.
6. Password. If you register, you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. The Site may implement technology that enables us to recognize you as the account holder and provide you with direct access to your account when you revisit the Site. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or Company compatible devices, and you agree to accept responsibility for all activities that occur under your account or password. Where possible, users of public or shared devices should log out at the completion of each visit. If you sell or return a computer or Company compatible device, you should logout and/or deactivate the device before doing so. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), you shall immediately notify Company. Then, you should report this incident to all of your card issuers, as well as your local law enforcement agency. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, COMPANY OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
7. Ownership; Proprietary Rights.
(a) General. The Site, including all content, visual interfaces, interactive features, audio, video, digital content, information, text, graphics, design, compilation, computer code, products, software, services, proprietary information, copyrights, service marks, trademarks, trade names, distinctive information such as logos, the selection, sequence, “look and feel,” arrangement of items, and all other elements of the Site that are provided by Company (“Company Materials”) are owned and/or licensed by Company and are legally protected, without limitation, under U.S. federal and state laws and regulations, as well as applicable foreign laws, regulations and treaties. Company Materials do not include Non-Company Content (as defined below). Except as expressly authorized by Company, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, reverse engineer or disassemble any software or otherwise make unauthorized use of the Site or Company Materials. Company reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the Company Materials, except for the limited rights expressly set forth in these Terms.
8. Streaming, Apps and Other Downloadable Software.
(a) Our Site may include Company Materials which are capable of being streamed or downloaded. Any one or more of the following types of service may be available: (i) rental offerings in which you must pay a set price to stream that one particular piece of Company Materials during a specified time period; (ii) retained downloaded Company Materials, in which you must pay a set price to download that one particular piece of Company Materials and may view said piece of Company Materials an unlimited number of times during an unlimited time period; and/or (iii) download and burn content wherein you have the right to download a piece of content and burn it to recordable optical media at different price points as set forth on the service. We reserve the right to change the types of service at any time.
(b) Streaming. To simplify your viewing and management of Company Materials that have a limited viewing period, we may automatically remove Company Materials from your device after the end of its viewing period, and you consent to such automatic removal). Company Materials will generally continue to be available to you for streaming from the Site, as applicable, but may become unavailable due to potential content provider licensing restrictions and for other reasons. We will not be liable to you if Company Materials becomes unavailable for further streaming. When you stream Company Materials, the resolution and quality you receive will depend on a number of factors, including the type of compatible device on which you are streaming Company Materials with and your bandwidth, which may go up and down over the course of your viewing. If we detect that the Company Materials that we are streaming to you may be interrupted or may otherwise not play properly due to bandwidth constraints or other factors, we may decrease the resolution and file size in an effort to provide an uninterrupted viewing experience. While we strive to provide a high quality viewing experience, we make no guarantees as to the resolution or quality of Company Materials you will receive when streaming, even if you have paid extra for access to high definition content.
(c) Apps and Other Downloadable Software. If Company Materials are in software form, you are permitted to install and use one copy of the software on your personal computer system in machine-executable object code form only. You may make one copy of the software solely for your own emergency backup purposes, provided that you include all copyright and trademark notices on the back-up copy. Upon receiving notice of revocation, you must destroy all copies of the software in your possession and/or residing on systems under your control. You do not own the downloaded software, and we do not transfer ownership of the software to you. We retain full ownership of and title to the downloaded software and all intellectual property rights related to the software. You may not redistribute, sell, decompile, reverse engineer, disassemble or otherwise reduce the software to a human-perceivable form. Software that is downloaded from the Site is subject to United States export control laws. If you download software from the Site, you represent and warrant to us that you are not acting in violation of those laws.
(d) U.S. Government End Users. The software and any related documentation are “commercial items” as that term is defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1, as applicable. Pursuant to 48 C.F.R. §12.212, 48 C.F.R. §252.227- 7015, 48 C.F.R. §227.7202-1 through 227.7202-4, 48 C.F.R. §52.227-19, and other relevant sections of the U.S. Code of Federal Regulations, as applicable. The software and related documentation are distributed and licensed to U.S. Government end users with only those rights set forth herein.
9. Purchases and Donations.
(a) We may offer products and services for sale on the Site, and we may offer opportunities to make donations to our organization. Please carefully read all donation and pricing terms available in the areas of the Site that allow you to make donations or purchases. Your use of the Site includes the ability to enter into agreements and/or make transactions electronically. You acknowledge that entering into a transaction electronically (including without limitation all records relating to such transactions) constitutes your agreement and intent to be bound by and to pay for such agreements and transactions. Company is not responsible for typographic errors. Some aspects of the Site may require you to pay a fee. The price for each respective Company Materials will be clearly marked on the launch page and also clearly marked when you enter your credit card information to purchase. A valid credit card (VISA, MasterCard or American Express) is required to pay for Company Materials. The fee will be charged only when you submit your credit card information to us. This license is a personal, limited, non-transferable, non-sublicensable, revocable license, and we reserve the right to alter or revoke the license at any time by providing notice to you. You agree to pay all fees and applicable taxes incurred by you or anyone using your account and obtain and maintain all equipment and services needed in order to access the Site.
(b) Price changes. We may revise the pricing for products, services or features offered through the Site at any time, but we will give you advance notice of these changes via email. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or products or services provided by, us, your account may be closed without warning or notice at our sole discretion. EXCEPT AS OTHERWISE SET FORTH IN ANY RETURN POLICY OR CANCELLATION POLICY APPLICABLE TO OUR FEE-BASED PRODUCTS, SERVICES OR FEATURES, YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE-BASED PRODUCTS, SERVICES OR FEATURES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
(c) Subscription. By purchasing a subscription membership through the Site, you are expressly agreeing that we are authorized to charge you a monthly subscription fee at the then current rate of the subscriptions that you select plus any applicable tax, and any other charges you may incur in connection with your use of the Site to the payment method you provided during registration (or to a different payment method if you change your account information). As used in these Terms, “billing” shall indicate either a charge or debt, as applicable, against your payment method. The subscription fee or fees will be billed at the beginning of the paying portion of your subscription and each month thereafter unless and until you cancel your subscription. Company automatically bills your payment method each month on the calendar day corresponding to the commencement of your paying subscription. Subscription charges are fully earned upon payment. In the event that your paying subscription began on a day not contained in a given month, we bill your payment method on the last day of such month. For example, if you became a paying subscriber on January 31st, your payment method would be billed on February 28th. You acknowledge that the amount billed each month may vary from month to month for reasons that include differing amounts due to promotional offers, differing amounts due to changes in your subscriptions, changes in the amount of applicable sales tax, and charges for termination and your subscription. You authorize us to charge your payment method for such vary amounts. We may also periodically authorize your card in anticipation of subscription or related charges. All fees and charges are fully earned upon payment. Payments are nonrefundable and THERE ARE NO REFUNDS OR CREDIT FOR PARTIALLY USED PERIODS. If you want to use a different payment method or if there is a change in payment method, such as your credit card validity or expiration date, please contact us at firstname.lastname@example.org. You are responsible for keeping your payment information current or cancelling, your account. If your payment method reaches its expiration date and you do not edit your payment information or cancel your account, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts.
(d) Ongoing Subscription. Your subscription will continue in effect unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews each month in order to avoid billing of the next month’s membership fees to your payment method. We will bill the monthly membership fee at the then current rate plus any applicable taxes to the payment method you provide to us during registration (or to a different payment method if you change your account information).
(e) All Rental and Sales Final. All purchased and rentals of Company Materials are final.
(f) Credit Expiration. Unused credits purchased through the Site will expire after 365 days from purchase.
(g) Gift Subscriptions. Gift subscriptions are designed to be sent to friends and family, so that they create their own accounts and have full access to all subscription content. Gift purchasers may opt to send a gift subscription notice to their chosen gift recipient on a date within six calendar months of the purchase. Gift subscriptions do not automatically renew unless you already have an active subscription to the digital content. At the end of the gift term, if the gift recipient did not already have an active subscription to the digital content, the account’s subscription access will end. If a gift recipient would like to continue viewing content after the gift term, they can purchase their own personal subscription. The subscription term doesn’t begin until the gift recipient redeems their gift code. Please note that gift subscriptions, which constitute a pre-paid membership subscription to the channel can be purchased and redeemed online only on the channel itself. Company is not responsible for hardware issues related to your device’s access to the channel, so please check with the applicable device maker for compatibility. Gift subscriptions are not refundable or redeemable for cash, either prior or subsequent to redemption, unless otherwise required by applicable law. Unless otherwise specified, gift subscriptions do not expire, so please keep your gift subscription and subscription code in a safe location as we are not responsible for lost or stolen subscription codes.
(h) Cancellation. You may cancel your account with us at any time by following the instructions on the Site. For subscription services, WE DO NOT PROVIDE REFUNDS OR CREDITS FOR AN PARTIAL-MONTH SUBSCRIPTION PERIODS. If you voluntarily cancel your account or allow your account to lapse, you may reactivate your account at any time through the user account section of the Site.
(i) Termination. Accounts terminated by us for any type of abuse including, without limitation, a violation of these Terms, may not be reactivated. We reserve the right to immediately terminate your account in our sole discretion, and without prior notice to you if, for example, you violate the Terms. Without limiting the foregoing, if you are a repeat copyright infringer, we will, in appropriate circumstances, permanently terminate your account and remove all of your User Content from the Site.
10. Earnings and Rewards Programs.
(a) Company may offer programs which allow registered members to earn monetary and non-monetary rewards. Participants of Company’s Earnings and Rewards programs must be at least 18 year of age at the time of first use. Use of and participation in any of Company’s Earnings and Rewards programs is limited to residents of the United States. Company reserves the right to geographically limit or restrict your access to these services based upon your location and/or citizenship. Your use of these services represents that you are a legal resident of the United States and that you understand that monetary earnings will only be sent to residents of the United States using applicable United States currency. Company’s Earnings and Rewards programs are subject to minimum payouts. Associated monetary earnings will only be delivered once you have accrued the minimum payout amount. Minimum payout amounts are clarified within their respective access points within the service. Payment will not be delivered to you until you have selected your preferred method of payment. Company reserves the right to alter at its discretion, without notice to you, the minimum payout amounts associated with its services.
(b) Tax Considerations. Earnings and/or rewards you have accrued using Company’s services may be subject to tax filings and withholdings in accordance with United States tax laws. Company reserves the right to deny or withhold delivery of earnings, at any time, if you do not provide requested tax identification information in compliance with United States tax laws. Company may require you to provide identifying personal information, such as your social security number, in order to comply with these laws.
(c) Account Deactivation and Forfeiture of Earnings. Company reserves the right to deactivate your account at its discretion and retrieve or eliminate your accrued earnings and/or rewards without notification. Company is not obligated to pay past, present or future earnings and/or rewards to holders of deactivated accounts.
(d) Elimination of Earnings Source. From time to time, videos may be removed by Company or its members without notice. Company is not responsible for compensating you for the loss of past, present or future income from these eliminated sources.
(e) Refunded Earnings. Company may refund purchased to its customers at its sole discretion. Your earnings may be associated with purchased which have resulted in refunds. In the case that Company has refunded a purchase associated with your earnings, Company may revoke your associated earnings in order to fulfill the refund. Company will not compensate you for earnings lost as a result of the refunds.
(f) Earnings Expiration. Uncollected payments earned through use of Company’s affiliate systems will expire 365 days from the date of earning.
11. User Content.
(a) General. The Site may now or in the future permit you and other Users to post or link media, text, ideas, questions, audio and video recordings, photos, graphics, commentary or other information or content (“User Content”), and to host and/or share such User Content. User Content is controlled by Company. Company makes no representations that your User Content will remain available via the Site in any way. We may remove your User Content at our sole discretion. YOU UNDERSTAND THAT ANY USER CONTENT THAT YOU POST FOR VIEWING ON THE SITE IS MADE PUBLICLY AVAILABLE TO USERS OF THE SITE, AND COMPANY DOES NOT GUARANTEE ANY CONFIDENTIALITY WITH RESPECT TO ANY SUCH USER CONTENT, NOR DOES IT GUARANTEE THAT YOUR INTELLECTUAL OR PROPRIETARY RIGHTS IN SUCH USER CONTENT WILL NOT BE INFRINGED OR MISAPPROPRIATED.
(b) Grant of Rights. By submitting User Content to Company, you hereby grant Company a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, perform, and otherwise exploit your User Content in connection with the Site and Company’s (and its successor’s, transferees’, sublicensees’ and their respective affiliates’) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels or through merchandising. You grant Company, transferees and sublicensees (and their respective affiliates) the right to use the name that you submit in connection with such User Content if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also hereby grant to each User of the Site a non-exclusive license to access your User Content through the Site, and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Content as permitted by the functionality of the Site and these Terms. The above licenses granted by you in User Content you submit to the Site shall be perpetual and irrevocable, except that with respect to any User Content that you have removed or deleted while maintaining your Site user account, or any User Content following any deactivation or deletion of your Site user account, you may specifically notify Company regarding the termination of the foregoing license from you to Company, specifically identifying the item(s) of User Content to which such termination applies, in which case the foregoing license will terminate within a commercially reasonable time after you provide such notice to Company. You understand and agree, however, that even following such termination, Company may retain, but not display or perform, server copies of such User Content. Notwithstanding anything to the contrary herein, the above licenses granted by you in user comments you submit are perpetual and irrevocable.
(c) Your Representations and Warranties Regarding User Content. You shall be solely responsible for your own User Content and the consequences of posting such User Content. In connection with User Content, you affirm, represent, and/or warrant that: (i) your User Content is not confidential or secret, (ii) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Company to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by Company and these Terms, and to grant the rights and license set forth in this Section, and (iii) your User Content, Company’s use of such User Content pursuant to these Terms, and Company’s exercise of the license rights set forth in this Section, do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate any applicable law or regulation, (iv) you have no expectation of compensation or confidentiality of any nature with respect to your User Content and we, our affiliates, our licensors and/or their affiliates may already have projects under consideration or are independently developing projects that are similar to your User Content; and (v) you shall indemnify and hold us harmless from and against any and all claims, actions and damages (including, without limitation, court costs, legal fees, accounting fees and amounts paid in settlement) that are related to or result from your use of the Site, your User Content or its posting on, or submission to, the Site, and/or your violation of these Terms or your representations and warranties hereunder. You will cooperate as fully as reasonably required in the defense of any such claim or action; however, we reserve the right, at our own expense, to assume the exclusive defense and control of any mater subject to indemnification by you.
(d) Prohibited Uses of User Content. Except as otherwise permitted by these Terms, in connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the Site: (i) any falsehoods or misrepresentations that could damage Company or any third party; (iii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) advertisements or solicitations of business, products, or services; or (v) any material that would be harmful to minors in any manner.
(e) No Responsibility for User Content. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Content. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such User Content.
12. Non-Company Content Disclaimer. You understand that when using the Site you will be exposed to User Content, advertising and other third party content (together, the “Non-Company Content”) from a variety of sources and that you may be exposed to Non-Company Content that is inaccurate, offensive, indecent, or otherwise objectionable. Company does not endorse any Non-Company Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Company be liable in any way for or in connection with the Non-Company Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-Company Content, any intellectual property infringement or misappropriation with regard to any Non-Company Content, or for any loss or damage of any kind incurred as a result of the use of any Non- Company Content posted, emailed or otherwise displayed or transmitted through the Site.
13. Non-Monitoring of Users and Non-Company Content. You understand that you, and not Company, are entirely responsible for all User Content that you upload, post, e-mail, transmit or otherwise make available through the Site. Company does not control Non-Company Content posted by Users or otherwise made available by other persons or entities and does not have any obligation to monitor such Non-Company Content for any purpose. If at any time Company chooses, in its sole discretion, to monitor the Non-Company Content, Company nonetheless assumes no responsibility for the Non-Company Content, no obligation to modify or remove any inappropriate Non-Company Content, no obligation to continue to monitor the Non-Company Content and no responsibility for the conduct of the User or other person or entity submitting any such Non-Company Content. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Non-Company Content, including any reliance on the accuracy, completeness, usefulness, non-infringement or legality of such User Content or other Non-Company Content.
14. Removal of Non-Company Content. Company and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-Company Content that is available on the Site in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
15. Prohibited Uses of the Site.
(a) As a condition of your use of the Site, you hereby represent and warrant that you will not use the Site for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section) by these Terms.
(b) Any use by you of any of the Company Materials and Site other than for your personal use is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of the Site, use of the Site, access to the Site, or Non-Company Content obtained through the Site, for any purpose other than for your personal use.
(c) Except as expressly provided in Section 6, you agree not to create derivative works of the Site content, including, without limitation, montages, mash-ups and similar videos, wallpaper, desktop themes, greeting cards or merchandise, unless permitted under these Terms or with the prior written authorization of Company and any applicable licensors.
(d) You agree not to use the Site if you do not meet the eligibility requirements described in Section 1 above.
(e) You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Site, or collect, or attempt to collect, personal information about Users or third parties without their consent.
(f) You agree not to intentionally interfere with or damage, impair or disable the operation of the Site or any User’s enjoyment of it by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on the Site with the intended result of denying service to other Users.
(g) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security- related features of the Site, features that prevent or restrict the use or copying of any part of the Site, or features that enforce limitations on the use of the Site.
(h) You agree not to attempt to gain unauthorized access to the Site or any part of it, including gaining access or attempting to gain access to another user’s account, computer systems or networks connected to the Site or any part of it, through request, hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Site or any activities conducted through the Site.
(i) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site. You agree neither to modify the Site in any manner or form (other than contributing User Content as enabled by the Site’s functionality and in accordance with these Terms), nor to use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site or for the removal of any proprietary notices or labels on the Site.
(j) You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express prior written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
(k) You agree not to utilize framing techniques to enclose any trademark, logo, or other Company Materials without our express prior written consent. You agree not to use any meta tags or any other “hidden text” utilizing Company’s name or trademarks without Company’s express prior written consent.
(l) You agree not to use any Company logos, graphics, or trademarks as part of the link without our express prior written consent.
(m) You agree not to sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any right to the Site to any third party.
(n) You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Site or to insert your own or a third party’s advertising, branding or other promotional content on the Site. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
(o) You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(p) You agree not to use the Site in any manner that could interrupt, damage, disable, overburden or impair the Site, or interfere with any other party’s use and enjoyment of the Site, including, without limitation, sending mass unsolicited messages or “flooding” servers.
(q) You agree not to modify, adapt, translate, or create derivative works based upon the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(r) You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
(s) You agree not to use the Site to “stalk” or otherwise harass or harm another in any way.
(t) You agree not to post, transmit or otherwise disseminate through the Site any User Content that, as we determine in our sole discretion: (i) is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights, (ii) is derogatory or harmful to our reputation, the reputation of our licensors, or any of our or their respective officers, members, employees, representatives, licensors and/or suppliers, in any way; (iii) may incite violence or other unlawful activity; or (iv) is harmful to children in any manner.
Unauthorized or prohibited use of the Site or the Company Materials may subject you to civil liability, criminal prosecution, or both under federal, state and local laws.
16. Social Media Component
In certain sections of the Site, you can connect your Site account to Facebook, Twitter and/or Pinterest. If you choose to connect, you’ll be able to take advantage of various social features we will be creating as part of the Company service, as well as features available on Facebook, Twitter and/or Pinterest. These features will be designed to share information with others – the essence of social media. For example, your friends and others who have access to view information about you on Facebook or Twitter will be able to see (on Facebook and/or Twitter and on our Site) that you’re a Site member as well as what you’ve watched, rated, and other information about your use of the Site service. You’ll also be able to see similar information about your Facebook friends and the people or pinboards you follow on Twitter or Pinterest, who are connected to our Site. In addition, our Site may personalize and otherwise enhance your experience based on your Facebook, Twitter and/or Pinterest information, such as your basic information, likes and interests. Please pay careful attention to your Facebook, Twitter and Pinterest settings in your account as well as your privacy settings in Facebook, Twitter and Pinterest which will impact this feature and may give you some control over the information that is shared and who it is shared with.
While we hope that you find these features to be a great way to share information, including discovering new content, you may nonetheless disconnect your accounts at any time by signing in to your account. Facebook, Twitter and/or Pinterest also offers ways to manage the information you share with Company. See the respective websites for details.
BY CONNECTING YOUR SITE ACCOUNT TO YOUR FACEBOOK, TWITTER OR PINTEREST ACCOUNT, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE CONSENTING TO THE CONTINUOUS RELEASE OF INFORMATION ABOUT YOU TO OTHERS, INCLUDING TO FACEBOOK, TWITTER, AND/OR PINTEREST (IN ACCORDANCE WITH YOUR PRIVACY SETTINGS ON FACEBOOK, TWITTER, AND/OR PINTEREST AND YOUR ACCOUNT SETTINGS ON OUR SITE). IF YOU DO NOT WANT INFORMATION ABOUT YOU, INCLUDING INFORMATION SUCH AS YOUR MOVIE AND MUSIC ACTIVITY ON OUR SITE, TO BE SHARED IN THIS MANNER, DO NOT USE THE FACEBOOK, TWITTER OR PINTEREST FEATURES.
17. Affiliate Payments.
(a) In the event that Affiliate Links are enabled on specific videos hosted by Company, Company shall pay the Affiliate a commission “Commission”) for each qualifying sale of a video download (“Sale”) made through Affiliate’s unique link (the “Affiliate Link”), which identified by a visitor from the Affiliate’s website using the Affiliate Link. Company shall pay Commission to the Affiliate by Company check approximately every 30 days after the prior period. Company reserves the right to modify the payment schedule a long as notice is posted on Company’s Site. If Commission does not exceed Twenty Dollars ($20) for the Affiliate (the “Minimum Amount”) during a prior period, Company reserves the right to hold payment until Commissions accumulate to the applicable Minimum Amount. Company shall make all payments in U.S. dollars. If a Sale is canceled (or refunded), the related Commission will be deducted from the next payment of Commission. Company reserves the right to approve all Affiliate applications.
(b) Affiliate Links. Company shall automatically issue to Affiliate, an Affiliate Link or unique URL, which allows Company to identify visitors from the Affiliate’s website as originating from Affiliate. These visitors are tracked with this unique URL and sales are recorded with the Affiliate’s unique identifier. In order to receive Commissions, Affiliate shall use the provided Affiliate Link. The URL may be in various forms such as a banner, image or text link. Company reserves all rights in or to its trademarks and service marks. Affiliate may not use any trademark or service marks of Company in any way, including, but not limited to, registering internet domain names. The Affiliate may not display Company’s logo, image or trademark in a manner which may be reasonably construed as distasteful, defamatory or misrepresentative. Affiliate may not misrepresent Company’s products or services. Affiliate is solely responsible for insuring that its Affiliate Link is properly set up to qualify for Commissions. Affiliate agrees to not send unsolicited mail or SPAM mail to promote any of Company’s products or services. Affiliate understands and agrees that such action will result in immediate termination of Affiliate’s account with a cancellation of pending Commissions. Affiliate also understands and agrees that such action will be in violation of this Agreement and subject to legal action.
(c) Prohibited Sites. Affiliate may not use or utilize sites that promote sexually explicit material or violence. Affiliate also may not use or utilize sites that promote discrimination based on race, sex, religion, national origin and physical disability. Affiliate represents and warrants that its site does not directly promote or endorse the foregoing.
(d) Term and Termination. This Agreement remains in effect until terminated in writing by either party. Commissions earned through the date of expiration or cancellation of this Agreement will remain payable only if the sales are not cancelled or refunded by the referred customers. Company reserves the right to withhold payment of the final Commission payment to the Affiliate in order to ensure that the correct amount is paid. Upon cancellation or termination of the Agreement, outstanding Commissions for current period at time of cancellation shall be paid in the next Commission payment so long as the Affiliate has not breach any terms of this Agreement.
(e) Disclaimer. Company shall use reasonable efforts to track and pay Commissions for all sales that apply to Affiliate. Notwithstanding the foregoing, Affiliate understands and agrees that Company is not responsible for technical problems, acts by third parties, or other events outside our reasonable control which may temporarily disrupt or diminish Commissions payments made to Affiliate.
(f) Privacy. Company shall not provide identifying customer information to Affiliate. Notwithstanding the foregoing, Company may, in its sole discretion, provide an online report detailing price, service, date of sale and similar data for Affiliate’s records.
(g) Independent Contractor. Each party shall function at all times as an independent contractor, and not as an employee, agent, partner or joint venture of the other party. You further acknowledge that by submitting User Content or other Non-Company Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Company other than pursuant to these Terms.
Each party shall be solely responsible for all liabilities arising from its employees. Affiliates are not employees of Company and is responsible for its own local, state or county taxes.
(h) Limitation of Damages. Company shall not be held liable for any indirect, incidental, special or consequential damages or any loss of revenue or profits arising under or with respect to this Agreement or the program shall in no event exceed the total Commissions paid or payable by Company to Affiliate under this Agreement. Affiliate understands and agrees that Affiliate tracking mat not always be completely accurate and Company is not responsible for inaccuracies that might occur beyond its control.
18. Dealings with Advertisers and other Users. Your correspondence or business dealings with, or participation in promotions of, advertisers and other Users found on or through the Site are solely between you and such advertiser or User. YOU AGREE THAT COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS OR USERS ON THE SITE.
19. Links and Third Party Websites.
(a) Linking to the Site. You agree that if you include a link from any other website to the Site, such link shall open in a new browser window and shall link to the full version of an HTML formatted page of the Site. You are not permitted to link directly to any image hosted on the Site, such as using an “in-line” linking method to cause the image hosted on the Site to be displayed on another website. You agree not to download or use images hosted on the Site on another website, for any purpose, including, without limitation, posting such images on another website. You agree not to link from any other website in any manner such that the Site, or any page of the Site, is “framed,” surrounded or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Site be discontinued, and to revoke your right to link to the Site from any other website at any time.
(b) Reference Sites. Company, Users and other third parties may provide links on the Site to other sites, including the content therein (“Reference Sites”). Company has no control over such Reference Sites or their content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or other content linked to by the Site. Company provides links to you only as a convenience, and the inclusion of any link on the Site does not imply our affiliation, endorsement, or adoption of the linked Reference Site or other content or any information therein. If you choose to correspond or engage in transactions with any other person, organization or business found on or through the Site, you acknowledge and agree that we are not a party to, and will not be responsible for, your interaction with such person, organization or business, including its treatment of your information, your User Content, and/or the terms and conditions applicable to any transaction between you and such third party. You agree that we have no responsibility or liability for any loss or damage of any kind that you may suffer as the result of any such interaction or the presence of such person, organizations or businesses on the Site. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, CONTENT, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. Our terms and policies do not govern your use of any site other than the Site. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
(c) Purchases on Third Party Websites. In addition to purchases on the Site, the Site may permit you to make purchases of products or services through third party websites. The terms associated with your transactions for these services and/or products are subject to the terms and conditions and privacy policies of the third party websites. If you have problems or questions regarding a transaction with a third party website, please contact the third party website directly.
20. Service Availability. Company may make changes to or discontinue any of the Company Materials, web communities, products or services available on the Site at any time, and without notice, and Company makes no commitment to update these materials on the Site.
21. Service Testing. From time to time, we test various aspects of the Site, including the platform, user interfaces, service levels, plans, promotions, features, availability of Company Materials, and pricing, and we reserve the right to include you in or exclude you from these tests without notice.
22. Feedback. You agree that with respect to any feedback, analysis, suggestions and comments to Company provided by you (collectively, “Feedback”), IN CONSIDERATION OF COMPANY PROVIDING ACCESS TO THE SITE FREE OF CHARGE, USER HEREBY GRANTS TO COMPANY THE EXCLUSIVE PERPETUAL, IRREVOCABLE AND WORLDWIDE RIGHT TO USE, COPY, DISPLAY, PERFORM, TRANSLATE, MODIFY, LICENSE, SUBLICENSE AND OTHERWISE EXPLOIT ALL OR PART OF THE FEEDBACK OR ANY DERIVATIVE THEREOF IN ANY EMBODIMENT, MANNER OR MEDIA NOW KNOWN OR HEREAFTER DEVISED WITHOUT ANY REMUNERATION, COMPENSATION OR CREDIT TO USER. User represents and warrants that User has the right to make the foregoing grant to Company and that any Feedback which is provided by User to Company does not infringe any third-party intellectual property rights. Notwithstanding the foregoing, Company grants to you a non-exclusive, non-transferable, non-sublicensable, world-wide, perpetual and irrevocable license to use the Feedback for your own personal, non-commercial purposes that do not compete, directly or indirectly, with our use of such Feedback.
23. Termination. You agree that Company, in its sole discretion, may terminate any account (or any part thereof) you may have through the Site or your use of the Site, and remove and discard all or any part of your account or any User Content. You agree that your access to the Site or any account you may have or portion thereof may be terminated without prior notice, and you agree that Company shall not be liable to you or any third-party for any such termination. Company reserves the right to modify, suspend or discontinue the Site and/or access to it at any time and without notice to you, and Company will not be liable to you should it exercise such rights, even if your use of the Site is impacted by the change. These remedies are in addition to any other remedies Company may have at law or in equity.
24. INDEMNIFICATION; HOLD HARMLESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE SITE; (II) YOUR USER CONTENT, INCLUDING COMPANY’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY COMPANY. COMPANY RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY. COMPANY WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
25. DISCLAIMERS; NO WARRANTIES.
(A) ACKNOWLEDGMENT. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 19, AND SECTIONS 20 AND 21 BELOW, THE TERM COMPANY INCLUDES EACH OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS AND SUBCONTRACTORS.
(B) NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SITE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(C) “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” YOU EXPRESSLY AGREE THAT THE USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE, COMPANY MATERIALS, USER CONTENT, NON-COMPANY CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE,” “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
(D) WEBSITE OPERATION AND NON-COMPANY CONTENT. COMPANY DOES NOT WARRANT THAT THE COMPANY MATERIALS, USER CONTENT, NON-COMPANY CONTENT, SITE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SITE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, HACKING, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(E) ACCURACY. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(F) HARM TO YOUR COMPUTER. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE SITE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.
(G) ANY HEALTH AND WELLNESS CONTENT AND OR INFORMATION IS DESIGNED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND DOES NOT AND IS NOT INTENDED AS MEDICAL ADVICE, TO SERVE AS A SUBSTITUTE FOR MEDICAL ADVICE AND DOES NOT CONSTITUTE THE PRACTICE OF MEDICINE. YOUR USE OF THE SITE DOES NOT CREATE A DOCTOR / PATIENT RELATIONSHIP. COMPANY IS NOT A HEALTH CARE PROVIDER. THE SITE DOES NOT OFFER MEDICAL ADVICE AND NOTHING CONTAINED IN THE CONTENT IS INTENDED TO CONSTITUTE PROFESSIONAL ADVICE FOR MEDICAL DIAGNOSIS OR TREATMENT. YOU SHOULD NOT USE THE SITE TO DIAGNOSE A HEALTH OR FITNESS PROBLEM OR DISEASE. USE OF THE SITE DOES NOT REPLACE MEDICAL CONSULTATIONS WITH A QUALIFIED HEALTH OR MEDICAL PROFESSIONAL TO MEET THE HEALTH AND MEDICAL NEEDS OF YOU OR ANY OTHER PARTY. COMPANY DISCLAIMS ALL RESPONSIBILITY FOR THE PROFESSIONAL QUALIFICATIONS AND LICENSING OF, AND SERVICES PROVIDED BY, ANY PHYSICIAN OR OTHER HEALTH PROVIDER REFERRED TO ON THE SITE AND/OR ANY THIRD PARTY WEBSITE. NEVER DISREGARD THE MEDICAL ADVICE OF A PHYSICIAN OR HEALTH PROFESSIONAL, OR DELAY IN SEEKING SUCH ADVICE, BECAUSE OF SOMETHING YOU READ ON THE SITE. ALTHOUGH COMPANY STRIVES TO ENSURE THAT THE INFORMATION COMPANY PROVIDES ON THE SITE IS CORRECT, COMPANY CANNOT GUARANTEE THAT IT IS ALWAYS ACCURATE AND UP-TO-DATE. COMPANY OFFERS THE SITE AS IS AND WITHOUT ANY WARRANTIES.
(H) COMPANY MAKES NO REPRESENTATIONS OR WARRANTIE CONCERNING COMPANY READY DEVICES OR THE COMPATIILITY OF THE DEVICE WITH OUR SERVICE. Additional disclaimers or limitations of liability may be contained in the various software end license agreements you have agreed to by using our service.
26. LIMITATION OF LIABILITY AND DAMAGES.
(A) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL COMPANY OR ITS THIRD PARTY COLLABORATORS, LICENSORS OR SUPPLIERS, BE LIABLE FOR PERSONAL INJURY OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE, THE COMPANY MATERIALS AND USER CONTENT ON THE SITE OR ANY REFERENCE SITES, THE SITE ITSELF, OR ANY OTHER INTERACTIONS WITH COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) LIMITATION OF DAMAGES. IN NO EVENT SHALL COMPANY OR ITS THIRD PARTY COLLABORATORS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED DOLLARS (USD $100) OR ONE MONTH’S MEMBERSHIP FEE ON YOUR MEMBERSHIP PLAN (IF APPLICABLE) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE.
(C) THIRD PARTY PRODUCTS AND SERVICES. SOME USERS MAY USE THE SITE TO MARKET PRODUCTS AND/OR SERVICES. THE ABOVE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SUCH PRODUCTS OR SERVICES MARKETED, SOLD OR PROVIDED BY USERS, OR OTHERWISE BY THIRD PARTIES OTHER THAN COMPANY AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SITE OR THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION ANY REFERENCE SITES.
27. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN.
(A) LIMITATIONS BY APPLICABLE LAW. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
(B) BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT COMPANY HAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND COMPANY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY. YOU ACKNOWLEDGE AND AGREE THAT COMPANY WOULD NOT BE ABLE TO PROVIDE THE SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
28. Digital Millennium Copyright Act Compliance (“DMCA”).
(a) Infringement Claims. If you are a copyright owner or an agent thereof, and believe that any User Content or other Non-Company Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail). (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Site and that is to be removed or access to which is to be disabled, including the link or URL for all such material on the Site; (iv) Information reasonably sufficient to permit Company 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; (v) 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 (vi) 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 designated Copyright Agent to receive notifications of claimed infringement is:
The Thought Method co.
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFRINGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.
(b) Notice and Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below. We may, at our discretion, deny access to the Site by, or disable and/or terminate the accounts of, Users who may be infringers.
(c) Copyright Counter-Notices. If content you posted on the Site was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:
1. To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below.
2. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
(d) Elements of Counter-Notification. To expedite our ability to process your counter- notification, please use the following format (including section numbers):
1. Identify the specific URLs of (or other information sufficient to allow us to identify) material that Company has removed or to which Company has disabled access.
2. Provide your full name, address, telephone number, email address and, if you are a registered User, the User name of your Company account.
3. Provide a statement that you consent to the jurisdiction of the Eastern District of New York and the Federal District Court for the judicial district in which your address is located (if your address is outside of the U.S.A.), and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above or an agent of such person.
4. Include the following statement: “I swear, under penalty of perjury, that I have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
5. Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
The Thought Method co.
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant. After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Site. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
(e) Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on the Site is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of New York. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.”
(f) Disclaimer: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
(a) Notice. Company may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Site. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after an email is sent, unless Company is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide Company with notices only by mail to the address indicated below.
(b) Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Pennsylvania, without giving effect to any principles of conflicts of law. The Uniform Computer Information Transactions Act does not apply to these Terms.
(c) Jurisdiction. For any dispute you have with us, you agree to first contact us through email at email@example.com and attempt to resolve the dispute with us informally. If we have not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding, confidential arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Unless we agree otherwise with you, the arbitration will be conducted in Philadelphia, PA. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. We will reimburse those fees for claims totaling less than $1,000 unless the arbitrator determines the claims are frivolous.
The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the service.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, WE AND YOU ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(d) Notice for California Users.
Under California Civil Code Section 1789.3, users of our Site service from California are entitled to receive the following information on how to resolve a complaint regarding the Site service or to receive further information regarding use of the Site service:
Such complaints or requests may be submitted to the Thought Method Co. by e-mail: firstname.lastname@example.org
(e) Claims. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If, for any reason, we believe, have reason to believe, suspect or are notified of any act, omission or circumstances which may or could (i) compromise or endanger the health, well-being or safety of any person, (ii) cause or lead to damage to persons or property (tangible or intangible), (iii) adversely affect, infringe upon or misappropriate the rights of others, (iv) harass or interfere with any other user or person, firm or enterprise, (v) interfere with or bypass our security or other protective measures applicable to our systems, networks and communications capabilities, (vi) breach or violate these Terms, or (vii) violate any law or regulation, we have the right, reserving cumulatively all other rights and remedies available to us at law, in equity and under this agreement with you, to report and provide information to any and all regulatory and law enforcement authorities and agencies and take any action permitted by law.
(f) Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Company to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
(g) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
(h) Assignment. The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
(i) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof. (k) Entire Agreement. This is the entire agreement between you and Company relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any Services Agreement that you may have entered into with Company. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms made by Company as set forth in Section 3 above. All rights not expressly granted in these Terms are reserved to us.
(j) Entire Agreement. This is the entire agreement between you and Company relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any Services Agreement that you may have entered into with Company. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms made by Company as set forth in Section 3 above. All rights not expressly granted in these Terms are reserved to us.