Posted March 13, 2009 by admin
Effective February 20, 2009
1. MODIFICATIONS TO THIS AGREEMENT
2. WEBSITE ACCESS
2.1 Subject to your compliance on a continuing basis with all of the terms and conditions of this Agreement, Company hereby grants you permission to use the Website only as set forth in this Agreement, and provided that: (i) your use of the Website as permitted is solely for your personal, noncommercial use; (ii) you will not copy or distribute any part of the Website in any medium without Company’s prior written authorization; (iii) you will not alter or modify any part of the Website other than as expressly authorized and then only for such express purpose; (iv) you may not circumvent, disable, violate or attempt to violate, or otherwise interfere with the security or integrity of the Website, the proper operation of the Website, the features that prevent or restrict use or copying of any Content (as the term is defined below) or enforce limitations on use of the Website or the Content therein, or interfere with any activity being conducted on the Website; (v) you may not decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up part of the Website; and (vii) you may not link to the Website without Company’s prior written consent.
2.3 You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Website in a manner that sends more request messages to the Company servers in a given period of time than a single human can reasonably produce in the same period by using a conventional web browser. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Website with respect to their “User Submissions,” as that term is defined below. You agree that your User Submissions both will not involve the transmission of “junk mail,” “chain letters,” “spamming,” or other unsolicited mass mailings, and will not contain restricted or password only access pages or hidden pages or images. Company reserves the right in its sole discretion to block access or discontinue services to offenders, and to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities.
3. INTELLECTUAL PROPERTY RIGHTS
The content on the Website, except any and all User Submissions, including without limitation, the text, software, scripts, graphics, files, images, photos, sounds, music, videos, interactive features and the like (collectively “Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Company, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Company reserves all rights not expressly granted in and to the Website and the Content. For clarity, as between the parties, you own the User Submissions that you create. You agree to not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any other purposes whatsoever any Content, including, but not limited to, image, audio, and visual content, Marks, third party User Submissions, or other proprietary rights not owned by you, (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any right of any third party. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.
This Agreement shall remain in full force and effect while you use the Website. Company may terminate your access to the Website or your membership at any time, for any reason, and without warning.
5. USER SUBMISSIONS
5.1 The Website may now, or in the future, permit the submission of recordings, videos or other communications submitted by you and other users (“User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, Company does not guarantee any confidentiality with respect to any such submissions.
5.2 You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. You agree that Company has no liability with respect to any User Submissions, including, without limitation, your own submissions, and you hereby irrevocably release Company and its officers and directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to User Submissions or any part thereof. In connection with your User Submissions, you affirm, represent, and warrant that you can and will demonstrate to Company’s full satisfaction upon its request that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Company to use each and every image and sound contained in each such User Submission and to enable inclusion and use of such User Submissions in the manner contemplated by the Website and this Agreement; (ii) specifically, you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Website and this Agreement; and (iii) specifically, the posting of your User Submission on or through the Website does not violate the privacy rights, publicity rights, copyrights, contract rights, or any other rights of any person or entity. You agree to pay all royalties, fees, and other monies owing any person or entity by reason of any content posted by you to or through the Website. By submitting your User Submissions to the Website, you hereby give Company all rights and licenses necessary to use and otherwise exploit the User Submissions for any purpose in connection with the Website and Company’s other related services. These rights are nonexclusive and irrevocable, but you remain the owner of the User Submissions that you create. You also hereby do and shall grant each user of the Website a non-exclusive license to access your User Submissions through the Website, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under this Agreement.
5.3 In connection with User Submissions, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Company or any third party; (ii) submit material that is unlawful, obscene, lewd, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, excessively violent, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable; (iii) post advertisements or solicitations of business; or (iv) impersonate another person. Company does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Company expressly disclaims any and all responsibility or liability in connection with User Submissions.
5.4 Company reserves the right to decide whether Content or a User Submission is inappropriate, or violates this Agreement, including without limitation, due to copyright infringement, violations of intellectual property law, pornography, obscene or defamatory material, or excessive length. Company also reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages and User Submissions) by you, or to restrict, suspend or terminate your access to all or any part of the Website at any time, for any reason, without prior notice. Notwithstanding the foregoing, Company assumes no responsibility for monitoring the Website, Content, or User Submissions for inappropriate conduct, or modifying or removing such conduct, Content or User Submissions from the Website.
5.5 In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other 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):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(d) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
You hereby agree that you shall not assert any claim against the Company or its officers or directors with respect to such content unless and until: (1) you have fully completed the process set forth above; and (2) the Company has failed to remove the offending content within thirty (30) days after such notification without a reasonable explanation for its failure to do so.
It is Company’s policy to (1) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied, displayed or distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue services to repeat offenders.
5.6 Company reserves the right to discontinue any aspect of the Website at any time.
6. THIRD PARTY WEBSITES
7. WARRANTY DISCLAIMER
TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS SUPPLIERS AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NEITHER COMPANY NOR ITS SUPPLIERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, MAKES ANY WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE WEBSITE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY; AND/ OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. THE WEBSITE IS CONTROLLED AND OFFERED BY COMPANY FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. COMPANY MAKES NO REPRESENTATIONS THAT THE WEBSITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE WEBSITE FROM OTHER JURISDICTIONS ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
You agree to defend, indemnify and hold harmless Company, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, demands, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Website or any Content; (ii) your violation of any term of this Agreement or your representations and warranties set forth above; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party.
By using the Website, you represent and warrant that (i) all registration information you submit is accurate and truthful; (ii) you will maintain the accuracy of such information; (iii) you are 18 years of age or older (if you are agreeing to these terms and conditions on behalf of a minor, you certify to Company that you are such minor’s legal guardian); and (iv) your use of the Website does not violate any applicable law or regulation. Your profile may be deleted and your membership may be terminated without warning, if Company believes that you are under 16 years of age.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY, ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOST PROFITS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SUBJECT TO THE FOREGOING, COMPANY’S LIABILITY TO YOU FOR ANY REASON, WILL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE COMPANY SERVICES IN CONNECTION WITH THE WEBSITE.
YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS SOLELY AND ENTIRELY WITH YOU.
You may not transfer or assign this Agreement or any rights and licenses granted hereunder without the Company’s prior written consent. The Company may freely transfer, assign, or delegate this Agreement, and any of its rights or obligations hereunder.
If there is any dispute about or involving the Website, you agree that the dispute shall be governed by the laws of the State of California, without regard to conflict of laws provisions. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Los Angeles, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator(s) with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected shall have substantial experience in the media industry. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in Los Angeles, California. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.