Table of Contents
[NOTE: Each Section of the Table of Contents should directly link to the applicable Section of the TOU.]
1. Summary of Key Terms
2. Ownership of Site Materials
3. Your License to Use Materials On Our Site
4. Copyright Agent
5. Information/Content You Submit
6. Acceptable Use Policy: Community Usage Rules
8. Your Warranties
9. User Interactions and Disputes
11. Third Party Links and Content
12. Linking Policy
14. Software and Other Items Available For Download
15. Disclaimer of Warranties
16. Disclaimers/Limitation of Liability
18. Term and Termination
19. Location of Site and Territorial Restrictions
20. Governing Laws; Jurisdiction; Arbitration
22. Entire Agreement, Termination and Modifications
1. SUMMARY OF KEY TERMS
It is important that you read all of these Terms. However, here are some of the big picture issues:
– Use of the Site constitutes acceptance of these Terms and our other policies and rules.
– Check back each visit as policies and rules may change.
– THESE TERMS REQUIRE YOU TO AGREE TO ARBITRATE DISPUTES RATHER THAN GOING TO COURT, GRANT US CERTAIN RIGHTS AND LICENSES, PROVIDE US CERTAIN INDEMNITIES, WAIVE CERTAIN OF YOUR RIGHTS AND REMEDIES, AND LIMIT OUR LIABILITY AND OBLIGATIONS TO YOU.
– You must be [eighteen (18)] years of age to use the Site.
– Content you submit is owned by you and you are responsible for all third party rights and payments. You grant us and other users the right to use and exploit your submissions.
– Your use of Site Materials (defined below) off-site is limited by these Terms.
– You may not use the Site, or content created thereon, for commercial purposes.
– Your use of the Site is AS IS, without warranty and will result in no liability to us.
2. OWNERSHIP OF SITE MATERIALS
Unless otherwise explicitly specified, this Site and all materials that are included in or are otherwise a part of the Site (including past, present and future versions), including, without limitation: graphics; layout; text; instructions, images; audio; videos; cartoons; designs; advertising copy; trademarks; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the “look and feel” of the Site; the compilation, assembly and arrangement of the materials of the Site; and all other materials related to the Site (collectively, the Materials” are owned, controlled or licensed by Company, its subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties. The entire contents of the Site (including the Materials) are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. Without limitation, Company owns a copyright in the selection, coordination, arrangement and enhancement of the Materials on the Site. Third-party content providers own the copyright in content that is original to them. “ToonsWare” as well as other marks that may appear on the Site, are the service and trademarks of Company. Without Company’s prior written permission, you agree not to display or use, in any manner any such marks and all goodwill associated with any use by you thereof will inure exclusively to Company or their respective owners. The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express permission of Company, unless and except as is expressly provided in these Terms. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional copyright notices, information or restrictions contained in any part of the Site.
3. YOUR LICENSE TO USE MATERIALS ON OUR SITE
4. COPYRIGHT AGENT
You may not use the Sites for any purpose or in any manner that infringes the rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the DMCA) (text at http://www.copyright.gov), Company has a designated agent for receiving notices of copyright infringement and we follow the notice and take down procedures of the DMCA. We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers. 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 DMCA, 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. Our copyright agent is VentureDNA, LLC, who may be reached by telephone at 837-604-9400 by e-mail at email@example.com or by postal mail at Venture DNA, LLC, 207 E. Westminster Ave., Suite 200, Lake Forest, IL 60045 NOTE: This contact information is for inquiries regarding potential copyright infringement only. It is often difficult to determine if your intellectual property rights have been violated. 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. We 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.
5. INFORMATION/CONTENT YOU SUBMIT
6. ACCEPTABLE USE POLICY: COMMUNITY USAGE RULES
As a user of the Site, you agree that these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of members of the Company online community (“Community”). Your participation in the Community is subject to all the Terms, including these Rules. Please follow these Rules as you upload any User Content, comment, reply, and create forum discussions with other members of the Community (collectively “Content”):
– 18 and older only please. Community members must be eighteen (18) years and older with no exceptions. Membership through our registration process and agreement to these Terms required to participate in the Community.
– Content must be yours. All Content must be original with you, not copied from someone else’s work, and you must have all rights in the Content; OR, all persons who contributed in any way or have any rights to your Content or otherwise appear in the Content have given you permission to upload and distribute the Content on the Site and elsewhere.
– No pictures or images of anyone but you and your friends and family. If you choose to upload photos to the Site, link to embedded videos, or include other images of real people, make sure they are of you or of you and someone you knowbut only with their express permission to submit it. If you submit User Content that includes the images of any minors, you represent and warrant that you have the prior written consent of both parents (or legal guardians) of the minor child before submitting such User Content.
– Don’t upload third party materials. Your Content should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any Content that belongs to other people and pass it off as your own. This includes any content that you might have found elsewhere on the Internet.
– Do we hear music Your Content may not contain any music unless the work and performance is original with you and/or you have all rights to the musical work (including any performances). No jingles, sampling or otherwise.
– Please follow codes of social decency. Express yourself with non-offensive individual self-expression. Be respectful of others opinions and comments so we can continue to build a Community for everyone to enjoy. If you think your Content might offend someone, chances are it probably will and it doesn’t belong on the Community. Cursing, flaming, harassing, stalking or similar actions are prohibited. Your Content may not threaten, abuse or harm others. Your Content may not include any negative comments that are connected to race, national origin, gender, sexual preference or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit.
– Do not use the Community for commercial purposes. Your Content may not advertise or promote a product or service. You may not use your Content to raise money for anyone or for a pyramid or other multi-tiered marketing scheme.
– Do not upload Content that is inappropriate or illegal. Your Content may not promote any illegal activity. If someone could go to jail for taking action suggested by your Content, don’t upload or post it. If you do upload or post Content 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.
– No violence. Your Content may not promote violence or describe how to perform a violent act.
– Be honest and do not misrepresent yourself or your Content. Do not impersonate any other person, user or company or upload or post Content that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company.
– Others are watching. We hope that you will use the Community to exchange information and content and have discussions with other members. However, please remember that the Community is a public forum and Content that you post on the Community will be accessible and viewable by other users. Do not post personal information (e.g., full name, password, phone number, address, e-mail address or other personally identifiable information or contact information)
– Don’t share other people’s personal information. Your Content may not reveal another person’s address, phone number, e-mail address, credit card number or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature.
– Don’t damage the Site or anyone’s computers. Content may not upload viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Site or any computer system.
Certain areas of the Site may require registration or may otherwise ask you to provide information to participate in certain features, such as leaving comments on a blog, in order to receive electronic newsletters or mobile alerts or to access certain Materials or post Content or to participate in social networking activities. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Materials or Content or participate in certain features of the Site or engage in social networking. When you provide information to the Site, you agree to provide only true, accurate, current and complete information. If you register on the Site and/or create a personal profile, you agree to accept responsibility for all activities that occur under your account or password, if any, and you agree you will not sell, transfer or assign your membership or any membership rights. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the Site using your name in whole or in part. Company reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability.
8. YOUR WARRANTIES
You represent and warrant that: (i) you are at least eighteen (18) years of age and you have the legal right and capacity to enter into these Terms in your jurisdiction and to comply with these Terms; (ii) all information you provide to Company is true, accurate, complete and current; and (iii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms. You also agree that you will be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Site and you will be responsible for all charges related thereto.
9. USER INTERACTIONS AND DISPUTES
You are solely responsible for your interaction with other users of the 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. 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.
The Site may contain or offer contests, sweepstakes or other promotions, which may be governed by a separate set of rules that describe the contest, sweepstakes 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 and to determine the sponsor’s requirements of you in connection with the applicable contest, sweepstakes or promotion.
11. THIRD PARTY LINKS AND CONTENT
There may be links from the Site, or communications you receive from the Site, to third party web sites or our Site may include third party content that we do not control, maintain or endorse. Accessing those third party sites requires you to leave the Site. We do not control those third party sites or any of the content contained therein and you expressly acknowledge and agree that we are in no way responsible or liable for any of those third party sites, including, without limitation, their content, policies, failures, promotions, products, services, actions and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their sites. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. COMPANY ENCOURAGES YOU TO REVIEW ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF SERVICE OF EACH AND ANY THIRD PARTY SITE THAT YOU VISIT.
12. LINKING POLICY
Company grants you the revocable permission to link to the Site; provided, however, that your web site, or any third party web sites that link to the Site: (a) may only link to a Site’s home page unless Company has provided prior, written consent to link to other pages; (b) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site; (c) must not imply that Company or the Site is endorsing or sponsoring it or its products, unless Company has given its prior written consent; (d) must not present false information about, or disparage, tarnish, or otherwise, in Company’s sole opinion, harm 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 otherwise objectionable (in Company’s sole opinion); and (g) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Site, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, Company reserves the right to prohibit linking to the Site for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
The Site offers features and services that are available to you via your mobile phone. These features and services may, include, without limitation, the ability to upload content to the Site, receive messages from the Site, download applications to your mobile phone or access Site features (collectively, the “Mobile Features”). Standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile 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 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.
You agree that the Mobile Features for which you are registered may send communications to your mobile device regarding Company or other parties. Further, we may collect information related to your use of the Mobile Features. If you have registered for Mobile Features, you agree to notify Company of any changes to your mobile number and update your account(s) on the Site to reflect this change.
14. SOFTWARE AND OTHER ITEMS AVAILABLE FOR DOWNLOAD
Any items that we make available for download or use from the Site and/or our servers (the “Downloadable Items”) are the copyrighted work of Company or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS. Note that if you install certain applications that may be available via the Site, you consent to the download of software to your computer and accept these Terms and any Additional Terms related to such application.
15. DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY AND ITS PARENT, SUBSIDIARIES OR AFFILIATES AND EACH OF THEIR EMPLOYEES; DIRECTORS; OFFICERS; MEMBERS; MANAGERS; SHAREHOLDERS; AGENTS; VENDORS; AND CONTRACTORS (COLLECTIVELY, THE “COMPANY PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITE; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITE; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITE; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO COMPANY OR VIA THE SITE. IN ADDITION, THE COMPANY PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.THE COMPANY PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE COMPANY PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT YOUR USE IS AT YOUR SOLE RISK. THE COMPANY PARTIES DO NOT WARRANT THAT YOUR USE OF THIS SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE COMPANY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. 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 THESE TERMS. BY ACCESSING OR USING THE SITE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE. THE COMPANY PARTIES DO NOT ENDORSE THE USER CONTENT, IS NOT RESPONSIBLE FOR THE USER CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY (INCLUDING, WITHOUT LIMITATION, PERSONS WHO MAY USE OR RELY ON SUCH USER CONTENT) FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY USER CONTENT OBTAINED THROUGH THE SITE.
16. DISCLAIMERS/LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SITE; (B) THE MATERIALS; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE SITE’S TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, MOBILE DEVICE, MODEM 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, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE). IN NO EVENT WILL THE COMPANY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE 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 WILL THE COMPANY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN DOLLARS ($10.00). YOU AGREE 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, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE COMPANY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE COMPANY PARTIES. BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to defend, indemnify and hold the Company Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) User Content; (b) your use of the Site or activities in connection with the Site; (c) your breach or anticipatory breach of these Terms; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your computer, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) the Company Parties’ use of your information. You will cooperate as fully required by the Company Parties in the defense of any claim. Notwithstanding the foregoing, the Company Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action which are brought against them herein under the terms and provisions of this Section. The Company Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the Company Parties.
18. TERM AND TERMINATION
Company reserves the right to terminate your access to and use of the Site in its sole discretion, without notice and liability, including, without limitation, if Company believes your conduct fails to conform with these Terms. Company also reserves the right to investigate suspected violations of these Terms, including, without limitation, any violation arising from any e-mails you send to the Site or Company. Any violation of these Terms may be referred to law enforcement authorities.
Upon termination of your access to the Site, or upon demand from Company, all rights granted to you under these Terms will cease immediately, and you agree that you will: (a) immediately discontinue use of the Site; and (b) destroy all materials obtained from the Site and all related documentation.
19. LOCATION OF SITE AND TERRITORIAL RESTRICTIONS
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Company to any registration requirement within such jurisdiction or country. Company controls and operates the Site from offices located in the United States and makes no representations or warranties that the information, products or services contained on the Site are appropriate for use or access in other locations. Anyone using or accessing the Site from other locations does so on their own initiative and are responsible for compliance with United States’, and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide. Software related to or made available by this Site may be subject to United States export controls. Thus, no software from this Site may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to this Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
20. GOVERNING LAWS; JURISDICTION; ARBITRATION
The Terms shall be governed by and construed in accordance with the internal laws of the United States and the [State of Illinois] governing contracts entered into and to be fully performed in the [State of Illinois] (i.e., without regard to conflict of laws provisions) regardless of your location. You acknowledge that the rights granted and obligations made hereunder to Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm Company and which cannot be replaced by monetary damages alone so that Company shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for money damages (if any). Except with respect to the interpretation, protection or enforcement of Company’s claimed intellectual property rights or right to seek injunctive relief (which will only be subject to arbitration if the parties mutually agree), you agree that any suit, action or proceeding arising out of or relating to these Terms or the Site (including, without limitation, statutory, equitable or tort claims) shall be resolved solely by binding arbitration before a sole arbitrator under the rules and regulations of the American Arbitration Association (AAA). The arbitration shall be held in Lake Forest, Illinois. The arbitrator shall apply the substantive laws of the State of Illinois, shall issue a written decision, and shall have the power to award any legal remedies consistent with this Agreement except for punitive, exemplary or special damages. The parties will split the arbitrator’s fee; provided, however, if applicable law requires Company to pay the arbitrator’s fee in order for the arbitration provision to be enforceable, Company shall have the discretion to elect to pay such fees and proceed to arbitration. You agree that the provisions in this paragraph will survive any termination of your account(s). You irrevocably agree that any and all disputes, claims and causes of action you may have in connection with or related to the Site will be resolved individually, without resort to any form of class action. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO ANY SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
The failure of Company to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit Company’s rights with respect to such breach or any subsequent breaches. No waiver by Company of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized office of Company. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. Company may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without Company’s prior written consent. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against Company by virtue of having drafted them
22. ENTIRE AGREEMENT, TERMINATION AND MODIFICATIONS
Company reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any materials, information or content available on the Site, without limitation, in whole or in part, including the cessation of all activities associated with the Site, with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or any part thereof. Company also reserves the right to charge for use of the Site, in whole or in part, and to change its fees from time-to-time in its discretion.
Company reserves the right to modify or add to these Terms at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on this Site so that they are accessible via a link on the home page, and that your use of the Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms before using the Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Site from that point forward.
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