(Effective: January 6th, 2016)
Termination. Company reserves the right to terminate this Agreement at any time and for any reason upon ten (10) days’ notice to you. Further, you agree that Company shall not be liable to you or any third-party for any termination or suspension of your access to the Site or any part thereof, removal of Content or sale of any products. You may terminate this Agreement at any time by immediately discontinuing all access to the Site and by providing notice to Company of such discontinuance. Termination or cancellation of this Agreement shall not affect any right or relief to which Company may be entitled at law or in equity.
Denial of Access. Company may discontinue or alter any aspect of the Site, remove Content, functionality or applications from the Site, restrict the time the Site is available or restrict the amount of use permitted at Company’s sole discretion and without prior notice or liability. You agree that Company may, under certain circumstances, immediately suspend and/or terminate your access to the Site or any part thereof. You further agree that such measures shall be taken in Company’s sole discretion and without liability to you or any third party.
II. Your Use of the Site
Prohibited Uses. You are solely responsible for any and all acts and omissions that occur under your account or password, and you agree not to engage in unacceptable use of the Site or any part thereof, which includes, without limitation:
(a) use of the Site to post, store or disseminate material or information that, is or to a reasonable person may be false, fraudulent, unlawful, harmful, tortious, abusive, obscene, pornographic, defamatory, libelous, harassing, invasive of another’s privacy, offensive, vulgar, threatening, malicious, embarrassing, hateful or racially, ethnically or otherwise objectionable;
(b) use of the Site to post, store or disseminate Content, files, graphics, software or other material or information that actually or potentially infringes the rights of any person, including, without limitation, the copyright, trademark, patent, trade secret or other intellectual property rights, or privacy, moral or publicity rights, of any person;
(c) use of the Site to interfere, disrupt or attempt to gain unauthorized access to other accounts on the Site, to restricted portion of the Site, to Content, or any other computer network or equipment;
(d) use of the Site to post, store or disseminate any type of computer viruses, trojan horses or any other malicious, destructive, disabling code or programs designed to interrupt, permit unauthorized access, destroy or limit the functionality of any computer software, hardware, system or telecommunications equipment;
(e) use of the Site to post, store or disseminate any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or other fraudulent schemes, or any other form of solicitation;
(f) use of any manual or automated software, devices or other processes to “crawl” or “spider” any web pages contained in the Site (including, without limitation, the use of robots, bots, spiders, scrapers or any other means to extract pricing, product, service or other data from the Site);
(g) use of the Site to gain competitive intelligence about Company, the Site or any product offered via the Site or to otherwise compete with Company or its affiliates; use the information in the Site to create or sell a similar product or information;
(h) harvesting or otherwise collecting any information about other users, including, without limitation, email addresses or other contact information of other users;
(i) use anything intended to damage or interfere with the proper functioning of the Site and the systems to which it connects or do anything that interferes with any other person’s use of the Site; framing or otherwise simulating the appearance or functions of the Site or any portion thereof;
(j) attempt to copy, change, disassemble, reverse engineer, decrypt, frame or translate the Site or otherwise attempt to learn the source code, structure, or ideas upon which the Site is based; attempt to copy, change, delete or alter any Content;
User Accounts. For certain aspects of the Site, you may be asked to register an account. In the event you agree to register an account, you will select and/or receive a username and password upon providing registration information and successfully completing the registration process. This account is personal to you, and you will not share it or allow any other person to utilize your account. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You agree to immediately notify Company in the event (a) your registration information changes, or (b) you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You also agree that you will provide truthful and accurate information during the registration process. Company may refuse to grant a particular username to you for any reason, including, without limitation, in the event Company determines that such username impersonates someone else, is protected by trademark or other proprietary right law or is vulgar or otherwise offensive.
Content. You acknowledge that the Site may contain or provide access to information, designs, compilations, magnetic translations, digital conversions, software, photos, video, text, graphics, music, sounds or other material provided by Company or third parties (collectively, “Content”) that are owned by Company or one of its affiliates or vendors, and protected by copyright, patent, trademark, trade secret or other intellectual property laws, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. You may not use images, trademarks, service marks, logos and/or icons displayed on the Site as these are our property and/or our licensors’ and may not be used without our written permission. You may not obscure or remove any proprietary rights or notices contained in or on the Site. All copyrighted material, trademark, service mark, legal, proprietary or other notice must not be removed from the Site and the Content you may access.
User Content. The Site offers the ability for Users to create an account and to submit ideas, photographs, pictures, data, questions, comments, suggestions, and information including personally identifiable information (collectively, “User Content“). User Content posted by users via the Site is the intellectual property of the specific users who post such content. By posting or delivering User Content, you hereby grant to Company a limited, transferable, nonexclusive, worldwide, perpetual, royalty-free license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense and create derivative works and compilations incorporating such User Content.
User Content Representations. For any User Content that you post via the Site, you hereby represent and warrant that: (a) you are owner of such User Content or otherwise have the right to grant Company the licenses granted pursuant to this Agreement; (b) you have secured any and all consents necessary to post the User Content and to grant the foregoing licenses; (c) the User Content does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such User Content does not contain any personally identifiable information about third parties in violation of such parties’ rights; and (d) the use of any User Content will not result in harm or personal injury to any third party. You agree to defend, indemnify and hold harmless Company, its officers, members, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorneys’ fees and costs and expenses, arising out of or in any way connected with (a) any claim that the User Content you provide infringes or misappropriates any intellectual property or other rights of Company or third parties, (b) Company’s use of any User Content you provide, and (c) any claim brought by a third party against Company relating to the User Content you provide.
Privacy of Others. You agree not to disclose information of other users that you may obtain through your use of the Site to third parties, or use the information for any purposes without the other user’s consent. You agree to only use another user’s information in connection with the Site.
V. Warranties; Disclaimers; Limitation of Liability; Indemnification
Disclaimers of Warranties. Company uses reasonable efforts to maintain the Site, but Company is not responsible for any defects or failures associated with the Site, any part thereof, any Content posted using the Site, the User Content or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. The Site may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions, (b) periodic maintenance procedures, upgrades or repairs which Company may undertake from time to time, or (c) causes beyond the control of Company or which are not foreseeable by Company. Company will not be liable for failure to provide access to the Site for any reason whatsoever.
Neither COMPANY nor any of our affiliates makeS any promises about the SITE. TO THE MAXIMUM EXTENT ALLOWED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES express or implied and THE SITE, ANY CONTENT, AND ANY INFORMATION PROVIDED VIA THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. COMPANY MAKES NO COMMITMENTS ABOUT THE RELIABILITY, AVAILABILITY, OR SECURITY OF THE SITE AND RELATED TRANSMISSION OF PERSONAL INFORMATION. COMPANY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS OR OTHER OBLIGATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT .
ALTHOUGH Company USES REASONABLE EFFORTS TO ENSURE THAT THE INFORMATION CONTAINED ON THE SITE IS AS ACCURATE AS POSSIBLE, Company also GIVES NO WARRANTY OF ANY KIND REGARDING THE SITE AND/OR company CONTENT posted or otherwise made available therein. company, WITHOUT LIMITATION, MAKES NO WARRANTY THAT THE SITE, ANY CONTENT OR ANY OTHER INFORMATION PROVIDED VIA THE SITE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. FURTHER, Company DOES NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF ANY company CONTENT, or THAT THE RESULTS OBTAINED FROM THE USE OF THE SITE OR company CONTENT WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE SITE OR ANY CONTENT, PRODUCTS, INFORMATION OR OTHER MATERIAL OBTAINED THROUGH THE SITE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT Company SHALL NOT BE LIABLE FOR ANY COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE OR ANY CONTENT; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS RESULTING FROM the inability to access or utilize ANY PRODUCTS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE, OR OTHERWISE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; OR (iv) ANY OTHER MATTER RELATING TO THE SITE, OR ITS CONTENT. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE SITE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL Company’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITE.
REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF WE ARE FOUND TO BE LIABLE, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES RELATING TO THIS AGREEMENT GREATER THAN ONE THOUSAND U.S. DOLLARS ($1000), TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Release / Indemnification. You agree to release Company, its members, managers, officers, employees and agents, from any and all liability and obligations whatsoever in connection with or arising from your use of the Site. If at any time you are not happy with the Site or object to any material within the Site, your sole remedy is to cease using them. You agree to defend, indemnify and hold harmless Company, its officers, members, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorneys’ fees and costs and expenses, arising out of or in any way connected with (a) your access to or use of the Site or any part thereof, (b) any User Content you post via the Site, (c) a breach or alleged breach by you of any of your representations, warranties, covenants or obligations under this Agreement, (d) infringement or misappropriation of any intellectual property or other rights of Company or third parties by you, or (e) any negligence or willful misconduct by you, (e) any other claim related to your performance under this Agreement, or (f) your use of any Content provided by Company.
Copyright Notice. Company respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Company’s Copyright Agent the following information: (a) an electronic or physical signature of the owner or person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of where the material that you claim is infringing is located on the Site sufficient to allow us to locate the allegedly infringing material; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please contact Company’s Copyright Agent for Notice of Claims of copyright infringement at: [email@example.com]. Copyright owners and agents acknowledge that failure to comply with all of the requirements of the foregoing may result in an invalidity of the DMCA notice.
Counter-Notice. If you believe that the Content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the Content, you may send a counter-notice containing the following information to the Copyright Agent: (a) your physical or electronic signature; (b) identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled; (c) a statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the User Content; and (d) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Jackson County, Missouri, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the person providing such Content, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Company’s sole discretion.
Removal of User Content. Please note however, that he removal of such User Content may not be completely removed or may otherwise still be available to others in the following circumstances: (a) your User Content has been incorporated into derivative works or compilations created by Company or other parties; (b) such User Content has been retained in Company’s data backup systems or for archival purposes; or (c) to the extent such User Content has been sold to or downloaded by other persons and such persons retain your User Content.
Independent Contractors. The parties are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other.
Waiver/Severability. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
Notice. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or email to either party’s last known post office, facsimile or email address, respectively. You hereby consent to notice by email. Company may send you via such email address Company newsletters, product updates, service-related information and other offers and information from Company or its business partners, and you hereby consent to such emails. Company also may contact you by email to respond to any customer service or other inquiries you submit.
Law/Forum. This Agreement is governed by and construed in accordance with the laws of the State of [MISSOURI], without giving effect to its principles of conflicts of law. Any litigation arising out of this Agreement shall be brought by either party in a court of competent jurisdiction located in [ST. LOUIS] County, [MISSOURI], and each party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum. Each party hereby expressly and irrevocably waives the right to a jury trial. The prevailing party shall be awarded its reasonable attorneys’ fees and costs in any proceeding arising out of or related to this Agreement. No action arising under this Agreement may be brought by User more than one (1) year after the cause of action has accrued.
Equitable Relief / Fees. The parties agree that breach of the provisions of this Agreement, including, but not limited to, the unauthorized use of the Site or Content, would cause irreparable harm and significant injury to Company which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Company has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies Company may have for your breach of this Agreement. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
Force Majeure. If the performance of any part of this Agreement by either party (other than the payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
Survival. The terms and provisions of Sections 3, 4, 5, 6, and 7 shall survive any termination or expiration of this Agreement.
Assignment. You shall not assign or transfer this Agreement or any rights or obligations under this Agreement. Any unauthorized assignment or transfer shall be void and constitutes ground for immediate termination of this Agreement by Company. This Agreement binds and inures to the benefit of the Company and their respective permitted successors and permitted assigns.
Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Site and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Site. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
Contact. This Site is operated by How He Asked, LLC. All inquiries may be directed to Company at [firstname.lastname@example.org].