Effective Date: November 24th, 2009
PLEASE NOTE: BY ACCESSING AND/OR USING THE WEB SITE, REGISTERING FOR SERVICES OFFERED ON THE WEB SITES, OR BY ACCEPTING, UPLOADING, SUBMITTING OR DOWNLOADING ANY INFORMATION OR CONTENT FROM OR TO OUR WEB SITES (OTHER THAN TO READ THIS TOU), YOU AGREE TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS OF THIS TOU AND APPLICABLE ADDITIONAL TERMS (DEFINED BELOW), INCLUDING GRANTS AND WAIVERS OF RIGHTS, LIMITATIONS ON OUR LIABILITY, YOUR INDEMNITY OF US AND MANDATORY ARBITRATION OF DISPUTES. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TOU, DO NOT USE THIS WEB SITE.
In some instances, both these TOU and a separate guidelines document or end user license agreement setting forth additional conditions may apply to a service or feature offered through this Web Site (“Additional Terms”). To the extent there is a conflict between these TOU and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Unless explicitly stated otherwise, any new Web Sites features, including the release of new or specialized Company web-based services, are subject to these TOU. In order to use our Web Sites, you must obtain access to the Internet, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment and technology necessary to make such connection to the Internet (e.g., personal computer, modem, cell phone, other access device, etc.).
Table of Contents
1. Ownership of Site Content
- Ownership of Site Content
- User Forums & Upload Information
- License/Use of User Upload Information
- Acceptable Use Policy
- Copyrights & Copyright Agents
- User Accounts
- Collaborative Works
- Viral Distribution
- Our Linking Policy
- Third Party Content and Linking to Other Sites
- Disclaimer of Warranties
- Disclaimers/Limitation of Liability
- Governing Law
- Jurisdiction, Venue & Arbitration
This Web Site, and all of its past, present and future content, such as graphics, text, images, audio, videos, designs, compilations, advertising copy, as well as the trademarks, logos, domain names, trade names, service marks and trade identities; any and all copyrightable material (excluding source and object code in raw form or otherwise, other than as made available to access and use via standard web browsers to enable display on your computer or mobile device); and all other materials related to "look and feel" of the Web Sites, and any other form of intellectual property (collectively, "Content") are protected by applicable copyrights and other proprietary is owned by or licensed to Company or other authorized third parties and is protected as intellectual property or otherwise. Except as expressly set forth in these TOU or otherwise expressly granted to you in writing by Company, no rights (either by implication, estoppel or otherwise) are granted to you. You may only use the Content as expressly set forth in these TOU or any Additional Terms. Unauthorized copying, reproduction, rearrangement, sales, leasing, renting, distribution, redistribution, modification, downloading, exchanging, creating of derivative works, uploading, posting, transmitting, or publication by you, directly or indirectly, of the Content, including the removal or alteration of advertising, except pursuant to the express limited grant of rights hereunder, is strictly prohibited. You agree to abide by any and all additional copyright notices, information, or restrictions contained in any part of the Web Sites. Copying, archiving or storing any part of the Web Sites for a purpose that is not permitted by these TOU is expressly prohibited without prior written permission from Company or the applicable copyright holder as identified on the Web Sites.
2. User Forums & Upload Information
The Web Sites may includes features where users can share information, such as interactive web pages, forums, message boards, chat rooms, social networking areas, or other areas on the Web Sites that allow users to post videos, pictures or other content and to view the content posted by other users ("User Forums"). User Forums are provided to give users a forum to express their opinions and share their ideas and information. Users may be able to upload or otherwise submit information, data, software, messages, suggestions, photographs, audio, video, text, and other materials to the Web Sites through User Forums and other Web Site features ("User Upload Information"). Company, its parent, subsidiaries and affiliates do not endorse the content, including, without limitation, any User Upload Information, posted in User Forums or otherwise on the Web Sites. Company reserves the right, but is not obligated, to reject, delete, move or edit User Upload Information in whole or in part, for any reason in Company's sole discretion. Company reserves the right to suspend or terminate your access to our Web Sites and pursue all legal remedies if we believe User Upload Information infringes another's copyright or otherwise violates any law, rule or regulation. You acknowledge and agree that you are prohibited from accepting payment from third parties for uploading User Upload Information to the Web Sites including, without limitation, accepting payment for the inclusion of a logo, brand or other commercial content, in User Upload Information and that your User Upload Information will comply with these TOU.
User Upload Information that you submit is your sole responsibility. This means that you, and not Company, are entirely responsible for all User Upload Information that you upload, post, e-mail, transmit or otherwise make available via the Web Sites. If you post personal information in User Forums or on other publicly available areas of the Web Sites then you may receive unsolicited communications or messages from third parties. Company cannot ensure the security of any information you post on the Web Sites. Under no circumstances will we be liable in any way for any User Upload Information including, but not limited to, any errors or omissions in User Upload Information, or for any loss or damage of any kind incurred as a result of User Upload Information. You represent that your User Upload Information is an original work by you or you have all necessary rights in it to submit it to Company under the terms of these TOU; that it is not defamatory; and that it does not infringe upon, misappropriate or violate the rights of any third parties, including, without limitation, any intellectual property rights, rights of publicity or privacy or any other proprietary rights or otherwise violate any law, rule or regulation. You further agree that you are solely liable for any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys' fees, connected to or arising from your breach of any representation or warranty, or other violation of the terms of these TOU or any Additional Terms.
You acknowledge that the Web Sites, through Company, undertake no obligation to pre-screen User Upload Information, but that it has the unfettered right (but not the obligation), in its sole discretion, to modify, edit, transmit over various networks, refuse, move, block access to, or remove any User Upload Information. Company might or might not post User Upload Information, and it is not required to do so. Also, Company may discard or destroy User Upload Information at any time it chooses, without any notice or liability to you. You agree that you must evaluate, and bear all risks associated with, the use of any of User Upload Information including, but not limited to, any reliance on the accuracy, completeness, or usefulness of User Upload Information. You understand that you may bear legal responsibility for others' exposure to any offensive, indecent, or objectionable content in your User Upload Information.
Please note that, generally, User Upload Information will be accessible by other users of the Web Sites. Please be sure that any of User Upload Information that you post on any publicly accessible portion of the Web Sites is information that you are comfortable sharing with others.
3. License/Use Of User Upload Information
, any applicable Additional Terms or on the Web Sites, User Upload Information will be treated as non-confidential and non-proprietary and we will not be liable for any use or disclosure to anyone, including but not limited to claimed intellectual property owners. When you upload User Upload Information via the Web Sites, you automatically and irrevocably grant to Company, its parent, subsidiaries and affiliates, and partners a non-exclusive, worldwide, royalty-free license to your User Upload Information, including, without limitation, all patents, trademarks, service marks, trade names, trade identities, copyrights, ideas, expression of ideas, trade secrets, logos, domain names, know-how, source code and object code, mask-work rights, inventions, moral rights, author's rights, algorithms, rights in packaging, goodwill and other intellectual property and proprietary rights ("IP Rights") whatsoever in your User Upload Information. You further agree that Company, its parent, subsidiaries and affiliates, and the directors, officers, employees, and other representatives of each of them will have the unfettered right throughout the universe, in perpetuity, without any credit, compensation or consideration of any kind to you or to anyone else, to use, reuse, modify, alter, display, exploit, develop, improve, archive, publish, sub-license, perform, reproduce, disclose, transmit, broadcast, post, sell, translate, create derivative works of, distribute and use for advertising, marketing, publicity and promotional purposes, any User Upload Information or portions of User Upload Information that you submit to Company, including your name, voice, likeness, and other identifying information (or any other person appearing in your User Upload Information), in any form, media, software or technology of any kind now known or developed in the future for any purposes whatsoever including, without limitation, developing, manufacturing and marketing products using your User Upload Information. You acknowledge that Company may be working on or developing IP Rights similar or the same in nature to User Upload Information and that Company may have received similar or the same IP Rights from another party. Company owes you no obligation with regard to your User Upload Information unless you and Company enter a written agreement to that effect. If User Upload Information is subject to protection under intellectual property rights laws, you are responsible for seeking and securing any such protection that may be available to you. Any discussion or negotiations between you and Company regarding User Upload Information does not constitute Company's recognition of the novelty or originality of User Upload Information. You hereby waive any moral rights you may have in and to any of your User Upload Information, even if such material is altered or changed in a manner not agreeable to you. You agree and understand that Company and its parent, subsidiaries and affiliates are not obligated to use User Upload Information, submitted through the Web Sites or otherwise, and may alternatively choose to discard, limit or block access to User Upload Information without any liability whatsoever.
4. Acceptable Use Policy
You represent, warrant and agree that User Upload Information you submit to Company or the Web Sites comply with the following rules:
1. All content must be yours. User Upload Information must be original with you, not copied from someone else's work, and you must have all rights in your User Upload Information. This means that all persons who contributed in any way or have any rights to the User Upload Information or otherwise appear in the User Upload Information have given you permission to upload and distribute the User Upload Information on the Web Sites, on television, DVDs and elsewhere.
2. Your content should only feature you and your friends and family. If you choose to upload videos or pictures to the Web Sites, make sure they are of you or of someone you know – but only with their express permission to post it.
3. Don't upload anyone else's materials or content. User Upload Information should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any content or materials that belong to someone else. This means your User Upload Information must not include any content that you know someone else created or that you might have found elsewhere on the Internet.
4. Music. User Upload Information may not contain any music unless the work and performance is original with you or you have all rights to the musical work (including any performances). No jingles, sampling or otherwise.
6. Keep it relevant. User Upload Information should relate to the content on the Web Sites and should be intended to add to the discussion on the Web Sites – it should not include irrelevant topics or postings (this is not the place to discuss politics, religion, or private matters).
7. Respect Others. Be respectful of others opinions and comments so we can continue to build a community for everyone to enjoy. Cursing, harassing, stalking, posting insulting comments, personal attacks, gossip or similar actions are prohibited. User Upload Information may not threaten, abuse or harm others. User Upload Information may not include any negative comments that are connected to race, national origin, gender, sexual orientation, religion, gender identity or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit.
8. Do not contribute User Upload Information that is inappropriate or illegal. User Upload Information may not promote any illegal activity. User Upload Information also may not promote violence or describe how to perform a violent act. If you do upload or post User Upload Information that is illegal or in violation of applicable law, we reserve the right to take action that we deem appropriate, in our sole discretion, including reporting you to the proper governmental authorities.
10. Be honest. Do not impersonate any other person, user or Company or upload or post User Upload Information that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or Company.
11. User Forums are not for commercial purposes. User Upload Information may not advertise or promote a product or service. You may not use User Upload Information to raise money for anyone or for a pyramid or similar marketing scheme.
12. The Web Sites are public. Remember that any User Upload Information that is posted on the Web Sites will be accessible and viewable by other users
13. Don't include personal information. . Do not submit contact information (e.g., full name, phone number, address, e-mail address) or other personally identifiable information for yourself or others. Your User Upload Information may not contain any information that may be used to track, contact, or impersonate someone or that is personal in nature about someone else.
14. No viruses or other destructive technologies. User Upload Information may not contain viruses, Trojan horses, spyware or any other technologies that could negatively impact the operation of the Web Site or any computer system.
15. Your interactions with other users. You are solely responsible for your interaction with other users of the Web Site, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Please exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
5. Copyrights and Copyright Agents
You may not use our Web Sites for any purpose or in any manner that infringes the rights of any third party. Company encourages you to report any content on the Web Site that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Web Site infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA"), Company has a designated agent for receiving notices of copyright infringement and Company follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Company's copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.
If you believe that any content on this Web Site contains content that violate your rights other than copyrights, please provide Company at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (c) an explanation what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you.
Please send (a) your notice of claims of copyright infringement on or regarding this Web Site, or (b) a complaint regarding alleged violation of rights other than copyrights, to Company's copyright agent who can be reached as follows:
Attn: Wayne Hutchinson, Copyright Agent
CBS Interactive Inc.
51 West 52nd Street
New York, NY 10019
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
Company will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party's intellectual property rights.
6. User Accounts
. If you choose to provide information to the Web Sites, you agree to provide only true, accurate, current and complete information. If you create an account, you agree to accept responsibility for all activities that occur under your account or password, if any, and agree you will not sell, transfer or assign your account. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer, mobile phone or other internet access device, as applicable, so that others may not access any password protected portion of the Web Site using your name, user name or password in whole or in part.
7. Collaborative Works
Company may provide certain functionality (referred to herein as “Mash-Up Tools") on our Web Sites that allows you to manipulate Content or allows you to combine Content with User Upload Information (“Your Contribution to Collaborative Works") or other users' uploaded information. The works created using the Mash-Up Tools are called "Collaborative Works."
Your use of Mash-Up Tools is subject to the following terms:
1. Company owns its Content and retains all rights in its Content. The license Company grants you to use the Content in connection with Mash-Up Tools is limited to Content specifically made available by Company for use in connection with Mash-Up Tools, and may be revoked by Company at any time without liability to you;
2. The license to use the Content in connection with Mash-Up Tools is solely for the purpose of allowing you to manipulate the Content or combine the Content with Your Contribution to Collaborative Works or other users' uploaded information as expressly allowed by Company on the Web Site and you may only do so by using the Mash-Up Tools;
3. Your use of the Mash-Up Tools and Collaborative Works is subject to these TOU and any additional terms and conditions as Company may from time-to-time notify you in these TOU or otherwise;
4. Company owns all rights in the Collaborative Works. You understand and agree that any Collaborative Works will be owned by Company and Company may make unlimited uses of the Collaborative Works and you have no rights in the Collaborative Works; however, you retain whatever prior rights you had in Your Contribution to Collaborative Works and retain the right to use Your Contribution to Collaborative Works in works entirely unrelated to Collaborative Works and Content and entirely unrelated to derivative works of Collaborative Works or Content;
5. You will have no control over Collaborative Works after submission, including, without limitation, with respect to subsequent contributions made by third parties; the license you grant to Company for your User Upload Information (as described above), applies to Your Contribution to Collaborative Works; and
6. You agree to include, and not remove or alter, any of the Company's trademark, copyright or other proprietary rights notices, as required to be displayed with the Collaborative Works, and you agree to comply with usage guidelines that may be provided by Company from time to time. If expressly permitted on the Web Sites, you may use the Web Sites to create Collaborative Works pursuant to these TOU, but you will not make any use of or license, distribute, reproduce, or otherwise exploit any part of the Collaborative Works (except Your Contributions to Collaborative Works), without our express written permission.
8. Viral Distribution
Only by express written direction as may appear on the Web Sites from time to time, the Company may grant you the limited, revocable permission to engage in certain expressly described personal uses of Content or other Company materials as may from time to time be made available via forms of digital delivery on the Web Sites for such purpose ("Viral Distribution"). Express written permission for Viral Distribution may include these personal uses: (a) sending Content or other Company materials to friends or acquaintances at no charge; (b) posting and displaying a copy of Content or other Company materials such as Collaborative Works on a personal web site; or (c) posting and displaying a copy of the Content or other Company materials such as Collaborative Works on a third party web site that permits users to post content, so long as the posting is allowed pursuant to the third party site terms and conditions, and provided that the third party web site does not charge for access to those materials or associate those materials with products, services or advertising.
If expressly permitted and made available on the Web Site, you may engage in Viral Distribution pursuant to these TOU, but you will not make any use of or license, distribute, reproduce, or otherwise exploit any part of the Content without our express written permission.
Any software that we make available for download or use from the Web Sites and/or our servers (the "Software") is the copyrighted work of Company or its licensors or suppliers. Your use of the Software may be governed by Additional Terms. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Software. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE ADDITIONAL TERMS APPLICABLE TO SUCH SOFTWARE.
The Web Sites may provide certain materials that you may choose to include in your personal web page or social networking profile page ("Personal Page") by pasting the HTML or other code provided by Company and labeled as an embed code (or similar identifying label) ("Embed Code") into your Personal Page ("Widget"). For any Widgets that Company makes available on the Web Sites, Company grants you a license, subject to the restrictions in this TOU and any applicable Additional Terms, to include the Embed Code as provided by Company (without editing) for inclusion on your Personal Page only. You agree that Company's license grant to you to use Widgets on your Personal Page does not provide you with any intellectual property rights, including copyrights, in the materials made available via any Widget. You agree to include, and not remove or alter, Company's trademark, copyright or other proprietary rights notices, as provided by Company on the Widget, Widget code or materials made available via a Widget. You agree not to circumvent (or attempt to circumvent) the security or rights management features in the Widget or any component of the Widget that are designed to prevent users from copying, manipulating or retaining the materials made available via the Widget. You also agree to not use (or attempt to use) the Widget to display content other than the materials provided or intended by Company to be displayed via a particular Widget.
11. Our Linking Policy
Any web site that links to the Web Sites: (a) must not frame or create a browser or border environment around any of the Content of the Web Sites; (b) may link to, but not replicate, the Content; (c) must not imply that Company or the Web Sites are endorsing or sponsoring it or its products, unless Company has given its prior written consent; (d) must not present false information about Company or its products or services; (e) must not use any Company trademarks without the prior written permission from Company; (f) must not contain content that could be construed as distasteful, offensive or controversial, or is otherwise inappropriate (in Company's sole discretion), and (g) must not damage, dilute or tarnish the goodwill associated with any Company names or any other Company intellectual property. By linking to any of the Web Sites, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these TOU, we reserve the right to deny permission to link to the Web Sites for any reason in our sole and absolute discretion.
12. Third Party Content and Linking to Other Web Sites
Certain areas of the Web Sites may allow you to conduct transactions or purchase goods or services from or through a third party. Also, third party advertisers may offer goods, services and other materials to you on the Web Sites. You should be aware that Content provided by third parties might contain errors, omissions, inaccuracies, outdated information, and inadequacies and that the Content may be subject to terms and conditions, which may be found in the documents and policies of third parties. We make no representations or warranties as to the completeness, accuracy, adequacy, currency or reliability of any Content and will not be liable for any lack of the foregoing.
This Web Site may also provide hyperlinks to third-party web sites ("Third Party Sites"). Third parties and Third Party Sites may have different privacy policies, terms and conditions and business practices than we do. We do not endorse, verify, make any representations, or take responsibility for the content, truthfulness, accuracy, quality or completeness of the content or activities conducted on any Third Party Sites.
Your correspondence and business dealings with others found on or through the Web Sites including, without limitation, the payment and delivery of products and services, and any terms, conditions, warranties and representations associated with such dealings, are solely between you and the third party.
YOU AGREE THAT COMPANY AND ITS PARENT, SUBSIDIARIES AND AFFILIATES WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, RESOURCES OR CONTENT AVAILABLE THROUGH ANY THIRD PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OF OR RELIANCE ON THE CONTENT, ADVERTISING, OR BUSINESS PRACTICES OF ANY THIRD PARTY. Reference on our Web Sites to any product, process, publication or service of any third party by trade name, domain name, trademark, trade identity, service mark, trade identity, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by Company, its parent, subsidiaries and affiliates. Users are requested to inform Company of any errors or inappropriate material found on Third Party Sites to which this Web Site is or may be linked.
The Web Sites may offer features and services that are available to you via your mobile phone or other mobile device. These features and services may include, without limitation, the ability to upload content to the Web Sites, receive messages from the Web Sites, download applications to your mobile phone or access Web Site features (collectively, the “Mobile Features"). We may charge for Mobile Features and these charges will be disclosed prior to completion of registration for the Mobile Feature. Message and Data Rates and other fees may be charged by your carrier. Fees and charges will appear on your mobile phone bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile phone or other mobile device. Contact your carrier with questions regarding these issues. As applicable, instructions regarding how to opt-out of Mobile Features will be disclosed in connection with Mobile Features. The instructions will typically require you to text a keyword (e.g., "STOP," "CANCEL," "END," "UNSUBSCRIBE," "QUIT," etc.) to the applicable shortcode for the Mobile Feature.
The Web Sites may contain or offer sweepstakes, contests or other promotions, which may be governed by a separate set of rules that describe the sweepstakes, contest or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid or restricted, and to determine the sponsor's requirements of you in connection with the applicable sweepstakes, contest or promotion.
15. Disclaimer of Warranties
THE WEB SITES, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, SOFTWARE, AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE WEB SITES, ARE PROVIDED "AS IS," "AS AVAILABLE, " AND "WITH ALL FAULTS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY AND ITS PARENT, SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) ABOUT: (A) THE WEB SITES; (B) THE CONTENT AND SOFTWARE ON AND PROVIDED THROUGH THE WEB SITES, INCLUDING ANY USER UPLOAD CONTENT (C) THE FUNCTIONS MADE ACCESSIBLE ON OR ACCESSED THROUGH THE WEB SITES; (D) THE MESSAGES AND INFORMATION SENT FROM THE WEB SITES BY USERS; (E) ANY PRODUCTS OR SERVICES OFFERED VIA THE WEB SITES OR HYPERTEXT LINKS TO THIRD PARTIES; AND/OR (F) SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE WEB SITES OR ANY LINKED SITE. COMPANY DOES NOT WARRANT THAT THE WEB SITES, ANY OF THE WEB SITES' FUNCTIONS OR ANY CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE WEB SITES OR THE SERVERS THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
COMPANY DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE WEB SITES IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, COMPANY SPECIFICALLY DISCLAIMS SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE WEB SITES, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE WEB SITES OR THE CONTENT. FURTHER, COMPANY AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE.
COMPANY, ITS PARENT, SUBSIDIARIES AND AFFILIATES OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM SHALL NOT BE LIABLE FOR THE USE OF THE WEB SITES INCLUDING, WITHOUT LIMITATION, THE CONTENT (INCLUDING ANY USER UPLOAD CONTENT) AND ANY ERRORS CONTAINED THEREIN. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THIS AGREEMENT.
16. Disclaimers/Limitation of Liability
YOU UNDERSTAND AND AGREE THAT COMPANY LIMITS ITS LIABILITY IN CONNECTION WITH YOUR USE OF THE WEB SITES AS SET FORTH BELOW:
UNDER NO CIRCUMSTANCES SHALL COMPANY, ITS PARENT, SUBSIDIARIES, OR AFFILIATES OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM (COLLECTIVELY, THE "COMPANY ENTITIES AND INDIVIDUALS") BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (1) THE WEB SITES, THE CONTENT, OR USER UPLOAD INFORMATION; (2) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE WEB SITES; (3) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY COMPANY OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE WEB SITES OR CONTENT; (4) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; (5) ANY ERRORS OR OMISSIONS IN THE WEB SITES' TECHNICAL OPERATION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY ENTITIES AND INDIVIDUALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE WEB SITES). IN NO EVENT WILL THE COMPANY ENTITIES AND INDIVIDUALS BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE COMPANY ENTITIES AND INDIVIDUALS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED TEN DOLLARS ($10).
THE COMPANY ENTITIES AND INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY USER'S COMPUTER, MODEM, CELL PHONE, HARDWARE, SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
YOUR ACCESS TO AND USE OF OUR WEB SITES IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH OUR WEB SITES OR ANY OF THE CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING OUR WEB SITES OR THE CONTENT.
YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF COMPANY'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, MOTION PICTURE OR OTHER AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY COMPANY AND/OR ITS PARENTS, SUBSIDIARIES, AND/OR AFFILIATES OR YOUR UPLOAD INFORMATION, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY COMPANY WEB SITE, PROPERTY, PRODUCT, PROGRAM, MOTION PICTURE , TELEVISION SHOW OR OTHER AUDIO/VISUAL CONTENT OR YOUR UPLOAD INFORMATION OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
BY ACCESSING ANY OF THE WEB SITES, I UNDERSTAND THAT I MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
You agree to defend, indemnify and hold harmless the Company Entities and Individuals with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including attorneys' fees arising out of or in connection with this TOU, including, without limitation: (a) your use of the Web Sites; (b) your violation of these TOU or any law, rule or regulation; (c) your use of the Content; or (d) any of Your Upload Information and your contributions to Collaborative Works. You will cooperate as fully and reasonably as required by Company in the defense of any claim. Notwithstanding the foregoing, Company retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against Company herein under the terms and provisions of this Section 17 and in no event shall you settle any such claim without Company's prior written approval.
18. Governing Law
THESE TOU AND THE INTERPRETATION OF THESE TOU SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
19. Jurisdiction,Venue & Arbitration
You waive all rights to trial by jury in any action or proceeding instituted in connection with these TOU and/or the Web Sites. Any controversy or claim arising out of or relating to these TOU and/or the Web Sites shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the State of California, in the City of Los Angeles, County of Los Angeles, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Any matters or proceedings that are not subject to arbitration as set forth in this Section 19 of these TOU and/or for entering any judgment on an arbitration award, shall take place in the State of California, in the City of Los Angeles, County of Los Angeles. You waive the defense of forum non conveniens.
You are solely responsible for compliance with applicable laws, rules, and regulations in connection with your use of the Web Sites and the Content, including, without limitation, those governing your transmission or use of any software or data. These TOU and any applicable end user license or similar agreements contain the sole and entire agreement between the parties with respect to the Web Sites, the Content and Your Upload Information and supersedes any and all other prior written or oral agreements between them. The section titles in these TOU are for your convenience only and do not have any legal or contractual effect. You agree that these TOU will not be construed against Company by virtue of having drafted these TOU. If any provision of these TOU shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of these TOU. No waiver on the part of Company of any of these TOU will be of any force or effect unless made in writing and signed by a duly authorized officer of Company.
You understand and agree that Company will determine your compliance with these TOU in its sole discretion. Company reserves the right to deny access to all or part of the Web Sites and to deny access to any person in its sole discretion without notice or liability of any kind. Any violation of these TOU may be referred to law enforcement authorities. Upon termination of your user account or access to the Web Site, or upon demand by Company, you must destroy all materials obtained from this Web Site and all related documentation.
Company reserves the right to modify or add to these TOU at any time without prior notice ("Updated TOU"). You agree that we may notify you of the Updated TOU by posting them on this Web Site so that they are accessible via a link on the home page, and that your use of the Web Site after we have posted the Updated TOU (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated TOU. Therefore, you should review these TOU before using the Web Site. The Updated TOU will be effective as of the time of posting, or such later date as may be specified in the Updated TOU, and will apply to your use of the Web Sites from that point forward.