Last Updated: September 30, 2013
THESE TERMS CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND COMPANY, AND YOU SHOULD READ AND BE SURE YOU UNDERSTAND THEM BEFORE USING THE SERVICE. BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT USE – AND ARE NOT AUTHORIZED TO USE – ALL OR ANY PORTION OF THE SERVICE.
1.2 Eligibility; Subscribing Entities. The Service is not intended for children under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By using the Service, you affirm that you are at least 18 years of age. If you are using or opening an account on the Service on behalf of a company, entity or organization (each a “Subscribing Entity”), then you represent and warrant that you: (a) are an authorized representative of that Subscribing Entity with the authority to bind such entity to these Terms and (b) agree to be bound by these Terms on behalf of such Subscribing Entity.
1.4 Evolving Nature of Service. The Service is continually evolving and changes to the Service may be made at any time. If you don’t like the Service or in any way disagree with these Terms, we hope you will let us know and give us constructive feedback. Please feel free to email us at any time at [email protected] However, your only remedy in the event you are dissatisfied with the Service or these Terms is to discontinue your use of the Service.
1.5 Consideration. The Service is currently offered for free. You understand and agree that these Terms are entered into in consideration of your use of the Service and for other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge.
1.6 Communications Between You and Company. We occasionally may have a need to communicate with you. You hereby authorize Company to communicate with you via e-mail for any matter related to the Service. With respect to promotional opportunities and certain other communications, you will be given the opportunity to opt out of receiving such communications, however, you hereby grant Company permission to communicate with you via e-mail about your use of the Service, changes to these Terms, or your rights and obligations under these Terms. You will be responsible for any fees incurred by you in receiving any communications from Company.
3. USE OF THE SERVICE
(a) Accuracy of Information. In becoming a User, you agree to provide true, accurate, current, and complete information as requested in any registration forms required by Company. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate.
(b) Log In Credentials. In order to register as a User, you will have to provide your name, email address and create a username and password. You may also register through a third party social network, such as Facebook. You are responsible for maintaining the security of your log in credentials in order to use the Service, and are fully responsible for all activities that occur through the use of your credentials by you or anyone authorized by you. You agree to notify Company immediately at [email protected] if you suspect or know of any unauthorized use of your log in credentials or any other breach of security with respect to your account. Company will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Company of such unauthorized use or loss of your credentials. Separate log in credentials may be required for Third Party Sites by the owners and/or operators of such sites or services.
3.3 Rejection of User Names. Company reserves the right to reject or revoke at any time the right of any User to use any name as part of a user name on the Service, without any liability to you. We need this right to ensure the integrity of the Service and the rights of other Users of the Service.
You may not violate, or attempt to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Company’s sole discretion. Company reserves the right to investigate any alleged or suspected violations and, if a criminal violation or other anticipated harm is reasonably anticipated to the Service, Company or any Users, refer such suspected violations or concerns to the appropriate law enforcement and governmental agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service. You hereby consent to Company’s making such disclosures if Company has a reasonable basis for doing so.
5.1 User Content. This Section 5governs any material that Users upload, post, link to, organize or transmit (collectively, “Organize”) to or through the Service or to us through e-mail, text message, or via any other means permitted by Company, including, by way of example and not limitation, literary works, photographs, audiovisual works, musical works, sound recordings, artwork, concepts, ideas, inventions, comments, messages, feedback, ideas, suggestions, and any other work subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws (“User Content”). You are solely responsible for securing the rights to any and all User Content you Organize on or through the Service. You acknowledge and agree that Company is not obligated to allow all User Content to be Organized on the Service and that third parties may implement measures to prevent certain content from being Organized on the Service as User Content. You may Organize your User Content in the manner most appealing or logical to you (e.g., sports, news, cooking, travel, etc.) (each such organization a “Topic”). Company will limit the use of third party content as required by the owners of such content. Company may offer you the ability to provide captions for some or all of the User Content you Organize on the Service, including in Topics, subject to description limitations imposed by Company. If you choose to delete a particular Topic from the Service, all of your User Content associated with such Topic will also be deleted.
5.5 Representations and Warranties with Respect to User Content. By Organizing or transmitting User Content on or through the Service, you hereby represent and warrant to Company that (a) you have obtained all necessary rights, permissions, licenses, authorizations, and clearances to grant the licenses and rights set forth in these Terms with respect to such User Content and (b) the Use of such User Content in any manner permitted by these Terms will not (i) infringe the rights of any third party, including copyright, trademark, patent and other intellectual property rights or other protected rights, such as the rights of privacy or publicity, or (ii) require Company or any Third Party Site on or through which the Service is made available to pay any fees of any kind to any third party for the Use of any User Content.
6. PERSONAL PAGE; CONDUCT ON THE SERVICE
6.1 You will have the right to create a personal page (your “Page”) on the Service on which to Organize and share your User Content by assembling your User Content into Topics. The User Content you post to your Page shall be subject to the license grants and other covenants, representations, and warranties set forth in this Agreement. You will have the right to create both public and private pages and control the dissemination of your User Content, as further explained in Section 6.2.
You agree that all disputes between you and any other User(s) of the Service shall be resolved between you and such other User(s) directly. You are solely responsible for your interactions with other Users of the Service. By using the Service, you do not surrender any of the rights or causes of action you may have against any other User(s) of the Service; provided, however, that any disputes you have with Company are subject to the dispute resolution provisions of these Terms. Company, including Company employees, representatives and agents, are not parties to, have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to, any communications, transactions, interactions, disputes or any relations whatsoever between Users. Company does not guarantee the accuracy of postings or User communications on or through the Service.
8.1 Generally. The content made available on or through the Service, including without limitation, any text, graphics, photos, software, music, videos, sounds, games and interactive features, but excluding User Content, may be protected by copyright or other intellectual property rights and owned by Company or third party licensors of Company. No material from the Service may be copied, reproduced, uploaded, republished, transmitted, posted, or distributed in any way without written permission of the copyright owner or as otherwise specified in these Terms or permitted by express functionalities of the Service. Modification of materials obtained from the Service, including, but not limited to, User Content, for any other purpose, including, without limitation, any commercial purpose, is a violation of the copyrights and other proprietary rights of the copyright owners, Company or its licensors, unless you have obtained express written authorization to the contrary. Permission for all other uses of materials made available on or through the Service must be obtained from Company or the copyright owner of User Content in advance and in writing. Requests for such authorization from Company should be submitted via an e-mail to [email protected] All design rights, databases and compilation and other intellectual property rights, in each case whether registered or unregistered, and related goodwill are proprietary to Company.
8.2 Trademarks. All trademarks, service marks, logos and trade names on the Service, whether registered or unregistered, are proprietary to Company or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.
8.3 License Grant to You. You are hereby granted a limited, non-assignable, revocable license to use the Service, including any software included with the Service, as provided for in these Terms and pursuant to the authorized features of the Service without modification, so long as you agree to these Terms, subject to Company’s right to terminate your right to use the Service in its sole discretion at any time.
8.4 No Implied Rights. There are no implied licenses granted in these Terms and all rights not granted to you as a User are expressly reserved by Company.
10.1 In using the Service, you agree not to:
(a) Create a false identity or impersonate another person or entity in any way;
(b) Organize, upload or otherwise transmit to or through the Service any information or content that is illegal, deceptive, intentionally false or misleading or infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party (including any content that is invasive of personal privacy or publicity rights), including by incorporating any such material in User Content;
(c) Organize, upload or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise) not otherwise provided for herein;
(d) Restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about Users of the Service not otherwise provided herein;
(e) Organize, upload or otherwise transmit to or through the Service any unlawful, harmful, harassing, violent, humiliating to other people (publicly or otherwise), abusive, racially or ethnically offensive, defamatory, threatening, profane, vulgar, sexually explicit, pornographic, hateful or otherwise objectionable material of any kind, and any material that can cause harm or delay to the Service or computers of any kind;
(f) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Company;
(g) Gain unauthorized access to the Service, to other Users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
(h) Reproduce, distribute, publicly display, publicly perform, sell, trade, resell or exploit any portion of the Service, use of the Service, access to the Service or content obtained through the Service, for any purpose other than expressly permitted by these Terms, including, by way of example and not limitation, by doing or engaging in any of the following without Company’s express written consent:
(i) copying, caching or reformatting any User Content for commercial purposes in any fashion whatsoever, whether by copying to physical or electronic media for purposes of buffering delivery or converting transmissions from the Service to alternative delivery formats;
(ii) framing, embedding and/or passing off User Content obtained from the Service in such a manner as to present them as originating from a source other than the Service;
(iii) altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
(iv) using any trademarks, service marks, design marks, logos, photographs or other content belonging to Company or obtained from the Service.
(i) Upload, post or otherwise transmit or make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
(j) Remove, disable, damage, circumvent or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service or any content on the Service, or features that enforce limitations on the use of the Service or any content on the Service;
(k) Use any scraper, spider, robot or other automated means of any kind to access the Service, except and solely to the extent permitted by these Terms and the features of the Service, deep-link to any feature or content on the Service, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service;
(l) Interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of such networks or servers;
(m) Violate any applicable federal, state or local laws or regulations or these Terms; or
(n) Assist or permit any persons in engaging in any of the activities described above.
11.1 You agree to indemnify, defend, and hold harmless Company and its parent, subsidiaries, affiliates, investors, partners, sublicensees or any related companies, licensors and suppliers (collectively, “Company Indemnified Parties”), and all Company Indemnified Parties’ respective directors, officers, employees, agents, representatives, contractors, and assigns and other Company Users who use any User Content you Organize or make available on or through the Service, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, attorneys’ fees and court costs) arising from or in any way related to: (a) your use or misuse of the Service; (b) your User Content, including any Company Indemnified Parties’ or any User’s Use of your User Content consistent with these Terms; (c) your breach or other violation of these Terms; or (d) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Content infringes or violates any third-party intellectual property rights or other proprietary rights, including any claims for the payment of any royalties claimed by any owner or other party claiming any right in or to all or any portion of any User Content Organized, linked to, uploaded, or transmitted by you on or through the Service. Notwithstanding the foregoing sentences of this Section 11, Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company Indemnified Parties if Company, in its reasonable discretion, concludes that you are not adequately protecting the Company Indemnified Parties’ interests or are incapable of protecting Company’s interests, and you agree to cooperate with Company’s defense of these claims. You agree not to settle any matter without the prior written consent from Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it but if Company is unable to communicate with you in a timely manner because of an inactive e-mail address, your indemnification obligation will continue notwithstanding Company’s inability to contact you in a timely manner.
12.1 THE SERVICE, USER CONTENT, AND ANY THIRD PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE ON OR THROUGH OR IN RELATION TO THE SERVICE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
12.2 YOU UNDERSTAND THAT WHEN USING THE SERVICE, YOU MAY BE EXPOSED TO USER CONTENT AND THIRD PARTY ADVERTISING FROM A VARIETY OF SOURCES, AND THAT COMPANY IS NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING THERETO. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO USER CONTENT AND THIRD PARTY ADVERTISING THAT IS INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST COMPANY WITH RESPECT THERETO. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY USER CONTENT AND THIRD PARTY ADVERTISING, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY OF THE FOREGOING ACCESSIBLE ON OR THROUGH THE SERVICE. BY ACCESSING OR USING ANY USER CONTENT OR THIRD PARTY ADVERTISING TRANSMITTED ON OR THROUGH THE SERVICE, YOU WAIVE ANY AND ALL CLAIMS AGAINST COMPANY THAT YOU MAY HAVE ARISING OUT OF OR RELATING THERETO.
12.3 NON-RELIANCE OF USER. YOU ACKNOWLEDGE THAT TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU FURTHER ACKNOWLEDGE THAT THERE HAVE BEEN NO OTHER REPRESENTATIONS OR WARRANTIES MADE TO YOU, EITHER DIRECTLY OR INDIRECTLY BY COMPANY.
12.4 YOU ACKNOWLEDGE THAT COMPANY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY PRODUCTS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, USER CONTENT, OR DATA THROUGH THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY OF THE FOREGOING. YOU SPECIFICALLY DISCLAIM ANY OBLIGATION OR DUTY BY COMPANY TO MAKE ANY DISCLOSURES OF FACT NOT REQUIRED TO BE DISCLOSED PURSUANT TO THE SPECIFIC REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS. YOU AGREE THAT YOU ARE USING THE SERVICE SUBJECT ONLY TO THE SPECIFIC REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS AS FURTHER LIMITED BY THE SPECIFICALLY BARGAINED-FOR EXCLUSIVE REMEDIES AS SET FORTH BELOW.
13.1 IN NO EVENT WILL COMPANY OR ITS OFFICERS, DIRECTORS, LICENSORS OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICE OR ANY PRODUCTS OR CONTENT (INCLUDING USER CONTENT) MADE AVAILABLE THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF COMPANY OR ITS LICENSORS OR SUPPLIERS ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY OR ITS LICENSORS OR SUPPLIERS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED ONE HUNDRED DOLLARS.
14.1 APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND COMPANY, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY IN LIGHT OF COMPANY’S OFFERING MANY OF THE FUNCTIONALITIES OF THE SERVICE FOR FREE, COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT COMPANY WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
15. TERM AND TERMINATION
15.1 Term. These Terms, as amended, will be effective commencing with your first use or registration of the Service and will remain in full force and effect throughout your use of the Service, until such time as you terminate your account or your account is terminated by Company, subject to the Survival provision of these Terms.
15.2 Termination by Company. Company may terminate your use of the Service or any features or functionalities of the Service at any time and for any reason, with or without notice, for conduct violating these Terms or upon Company’s sole determination. You hereby agree to Company’s broad right of termination. You agree that if your use of the Service is terminated pursuant to these Terms, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor. Upon Company’s termination of your use of the Service, Company may delete any of your User Content available on or through the Service and terminate your access to your User Content if those materials remain on the Service, without any liability to you.
15.3 Termination by You. You are free to terminate your use of the Service at any time; you can simply choose to stop visiting or using any aspect of the Service. If you wish to terminate your account on the Service, you may do so by sending an e-mail to [email protected] or using any other account termination functionality that may be offered through the Service. For example, we may develop a functionality that permits you to click on a termination button on your profile Page on the Website. If you terminate your account, then all of your User Content will be made inaccessible via the Service although copies of your User Content may remain stored on back-up storage media maintained by Company. If you stop using the Service but keep User Content Organized on the Service, then these Terms will continue to apply in full force and effect for so long as such User Content is available on or through the Service.
16.1 Respect of Third Party Rights. Company respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
16.2 Repeat Infringer Policy. Company’s intellectual property policy is to (a) remove or disable access to material that Company believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (b) remove any User Content Organized on the Service by “repeat infringers.” Company considers a “repeat infringer” to be any User that has Organized, uploaded or linked to User Content on or through the Service and for whom Company has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. Company has discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon Company’s own determination.
(a) If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(ii) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(iii) Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
(iv) Information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
Via E-mail: [email protected]
Via U.S. Mail:
Involved Media, LLC
21 West 46th Street
New York, New York 10036
Via Facsimile: (501) 640-7257
16.5 Counter Notification.
(a) If you receive a notification from Company that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Company with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Company’s Designated Agent through one of the methods identified in Section 16.4, and include substantially the following information:
(i) A physical or electronic signature of the subscriber;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Company may be found, and that the subscriber will accept service of process from the person who provided notification under Section 16.4above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
16.6 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Company reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 16should be sent to the Designated Agent at [email protected] or to the postal address of facsimile number identified above. Any other comments, compliments, complaints or suggestions about Company, the operation of the Service or any other matter should be sent to [email protected]
17. JURISDICTIONAL MATTERS
17.1 The Site and the Service are controlled and operated by Company from its offices within the State of New York. Company makes no representation that materials on the Websites or through the Service are appropriate or available for use in other locations. Those who choose to access or use the Service from other locations, including from outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
18.1 Company is not a party to, has no involvement or interest in, makes no representations or warranties as to, and has no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other User. All disputes between Users are subject to the provisions of Section 7. Disputes between a User and Company are subject to this Section 18.
(a) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Company, to you via any other method available to Company, including via e-mail. The Notice to Company should be addressed to: Involved Media, LLC, 21 West 46th Street, 16th Floor, New York, New York 10036 (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Company do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Company may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against Company, then Company will promptly reimburse you for your confirmed payment of the filing fee upon Company’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
(b) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Company agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) No Class Actions. YOU AND COMPANY AGREE THAT YOU AND COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION 18.2 SHALL BE NULL AND VOID.
(d) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of New York in conducting the arbitration. You acknowledge that these Terms and your use of the Service evidence a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
18.3 Choice of Law; Choice of Forum. These Terms and your use of the Service shall be governed by the substantive laws of the State of New York without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Company under these Terms shall be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and you and Company hereby submit to the personal jurisdiction and venue of these courts.
18.4 Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Company seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by Company or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Company, including with respect to any User Content, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms.
18.5 Claims. You and Company agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
18.6 Improperly Filed Claims. All claims you bring against Company must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Company may recover attorneys’ fees and costs up to $5,000, provided that Company has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
19.1 Entire Agreement. This is the entire agreement between you and Company relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between you and Company with respect to your use of the Service. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by Company as authorized in these Terms.
19.2 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. No failure or delay on the part of Company in the exercise of any power or right under these Terms shall operate as a waiver thereof. No single or partial exercise of any right or power under these Terms shall operate as a waiver of such right or of any other right or power. The waiver by Company of a breach of any provision of these Terms shall not operate or be construed as a waiver of any other or subsequent breach of these Terms.
19.3 Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
19.4 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any assignment attempted to be made by you in violation of these Terms shall be void. These Terms will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns.
19.5 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of these Terms or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Company other than pursuant to these Terms.
19.6 Survival. The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 2(Privacy), 4(Service Security), 5(Materials Submitted to the Service; License Grant from You to Company), 7(Disputes Between and Among Users), 8(Intellectual Property Rights), 9(Links to Third Party Sites), 10(Other Prohibited Activities), 11(Indemnity), 12(Disclaimers), 13(Company Limitation of Liability), 14(Limitations; Basis of the Bargain), 18(Dispute Resolution), and 19(Miscellaneous).
19.7 Headings. The heading references in these Terms are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
19.8 Communication. You may contact us by sending correspondence to
Involved Media, LLC
21 West 46th Street, 16th Floor
New York, New York 10036
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.