Terms
of Use
Effective date: February
15, 2008
Updated on: March 28,
2008
IMPORTANT! PLEASE
CAREFULLY READ THESE
TERMS OF USE ("TOU")
BEFORE USING THE WEB
SITES, AS THEY AFFECT
YOUR LEGAL RIGHTS AND
OBLIGATIONS. CBS
Interactive Inc.
("Company" or "we,"
"our," or "us") owns or
controls, and provides
access to, several
interactive web sites
(however accessed and/or
used, whether via
personal computers,
mobile devices or
otherwise) or other
interactive features
that are accessible or
downloadable through the
web sites owned or
controlled by Company
and that link to these
TOU (collectively, "Web
Sites"). THESE TOU
GOVERN YOUR USE OF THE
WEB SITES. These TOU
only apply to the Web
Sites, and not to any
other web site or any
offline activities by
Company (unless
specifically stated).
You agree to these TOU
by accessing or using
the Web Sites,
registering for services
offered on the Web
Sites, or by accepting,
uploading, submitting or
downloading any
information or content
from or to the Web
Sites. IF YOU DO NOT
AGREE TO BE BOUND BY ALL
OF THESE TOU, DO NOT USE
THE WEB SITES.
1. Acceptance of Terms
Your
use of the Web Sites is
subject to these TOU,
which may be updated by
us from time to time
without notice to you.
It is important for you
to refer to these TOU
from time to time to
make sure that you are
aware of any additions,
revisions, or
modifications that we
may have made to these
TOU. Your use of the Web
Sites constitutes your
acceptance of these TOU.
2. Description of Web
Site Services
The
Web Sites currently
provide users with
access to a rich
collection of online
resources, including
various communications
tools, online forums,
shopping services,
personalized content and
branded programming.
Unless explicitly stated
otherwise, any new
features that augment or
enhance the Web Sites,
including the release of
new or specialized
Company web-based
services, are subject to
these TOU. In some
instances, these TOU and
a separate end user
license or similar
agreement will apply to
a service or product
offered by Company
and/or the Web Sites. We
may add, change, remove,
suspend or discontinue
any aspect of the Web
Sites at any time
without notice. We may
also impose limits on
certain features and
services or restrict
access to parts of or
all of the Web Sites
without notice or
liability. In order to
use the 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 necessary to
make such connection to
the Internet, (e.g.,
personal computer,
modem, cell phone, other
access device, etc.)
3. Intellectual Property
Ownership; License
The
past, present and future
Web Sites content,
including, without
limitation,
organization, graphics,
text, images, audio,
videos, designs,
compilations,
advertising copy, and
the trademarks, logos,
domain names, trade
names, service marks and
trade identities; any
and all copyrightable
material (including
source and object code);
and all other materials
related to the Web
Sites, including without
limitation, the "look
and feel" of the Web
Sites (collectively,
"Content") are protected
by applicable copyrights
and other proprietary
(including, but not
limited to, intellectual
property) rights and are
the property of Company,
its parent,
subsidiaries,
affiliates, or its
licensors. 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. The 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.
Subject to your strict
compliance with these
TOU, Company grants you
a limited, personal,
non-exclusive,
non-commercial,
revocable,
non-assignable and
non-transferable license
to download - view, use
and/or play a single
copy of the Content
(excluding source and
object code), provided
that you: (i) retain all
trademark, copyright and
other proprietary
notices contained in the
original Content or any
copy you may make of the
Content; (ii) do not
allow or aid or abet any
third party (whether or
not for your benefit) to
copy or adapt the object
code of the Web Sites'
software, HTML,
JavaScript, or other
code; reverse engineer,
decompile, reverse
assemble, modify or
attempt to discover any
source code that the Web
Sites create to generate
its web pages; or any
software or other
products or processes
accessible through the
Web Sites; and (iii) do
not insert any code or
product to manipulate
the Content in any way
that affects any user's
experience.
* * *
4. Links To Other Web
Sites
The
Web Sites may contain
hyperlinks to other web
sites ("Other Sites").
If you use the
hyperlinks to access
these Other Sites, you
will leave the Web Sites
and your browser will be
re-directed to the Other
Sites. The Other Sites
may have their own terms
of service and privacy
policy and those Other
Sites may have different
practices and
requirements than the
Web Sites. Company may
not have knowledge of,
and is not responsible
for, the content
presented by any Other
Site. As such, Company
does not warrant or make
any representation
regarding the legality,
accuracy, or
authenticity of content
presented by Other
Sites. The hyperlinks to
Other Sites do not
constitute an
endorsement by Company
of any Other Site(s) or
resources, or their
content. The Web Sites
are only providing these
links to you as a
convenience.
5. 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; and (f)
must not contain content
that could be construed
as distasteful,
offensive or
controversial. 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.
6. Acceptable Use
You
will not use the Web
Sites to:
- Upload, post,
e-mail, transmit,
display, distribute,
promote, or
otherwise make
available: (i) any
material that is
false, unlawful,
threatening,
tortious,
disparaging
(including
disparaging of
Company, its parent,
subsidiaries or
affiliates),
anything that
adversely affects
CBS business such as
discouraging any
person or entity
from advertising
with, linking to or
supplying CBS,
abusive, libelous,
defamatory, obscene,
vulgar, offensive,
pornographic,
profane, racist,
sexually explicit,
ethnically or
culturally
offensive, indecent,
or that promotes
violence, racial
hatred, terrorism,
or illegal acts, or
is otherwise
objectionable in
Company's sole
discretion; (ii)
information,
software, or other
material that
violates,
plagiarizes,
misappropriates or
infringes the rights
of third parties
including, without
limitation,
copyright
(including, without
limitation, offering
pirated computer
programs or links to
such programs,
information used to
circumvent
manufacturer-installed
copy-protect
devices, including
serial registration
numbers for software
programs, or any
type of cracker
utilities),
trademark, patent,
trade secret, rights
of privacy or
publicity or any
other proprietary
right; (iii)
material of any kind
that contains a
virus, Trojan horse,
time bombs, worms,
spyware, bots, any
automated use of the
system, such as
scripts, or other
harmful component or
restricts or
inhibits any other
user's uninhibited
use and enjoyment of
the Web Sites,
interferes with or
disrupts the Web
Sites or servers or
networks connected
to the Web Sites, or
disobeys any
requirements,
procedures, policies
or regulations of
networks connected
to the Web Sites;
(iv) information or
material of any kind
that constitutes or
contains false or
misleading
indications of
origin or statements
of fact, including,
without limitation,
by forging any
TCP/IP packet
header, any part of
the header
information in any
transmission to the
Web Sites, or
otherwise
manipulating
identifiers in order
to disguise the
origin of any
content transmitted
to the Web Sites; or
(v) any unsolicited
or unauthorized
advertising,
promotional
materials, "junk
mail," "spam,"
"chain letters,"
"pyramid schemes,"
requests for money,
petitions for
signature, or any
other form of
solicitation;
Encourage, promote,
solicit or commit
conduct that would
constitute a
criminal offense,
give rise to civil
liability or
otherwise violate
any local, state,
national or
international law or
otherwise make
available any
material that
exploits or harms
any individual,
corporation or other
entity;
- Impersonate any
person or entity or
falsely state or
otherwise
misrepresent your
affiliation with a
person or entity;
- Disrupt the
normal flow of
dialogue, cause a
screen to "scroll"
faster than other
users of the Web
Sites are able to
type, or otherwise
act in a manner that
negatively affects
other users' ability
to engage in real
time exchanges;
- Stalk, abuse,
sexually exploit,
violently exploit,
act violently toward
or otherwise harass
another user;
- Use or attempt
to use another's
information,
account, password,
service or system
except as expressly
permitted;
- Solicit or
collect personal
data including
telephone numbers,
addresses, last
names, or email
addresses, about
other users.
You represent,
warrant and agree that
you will comply with the
above acceptable use
policy.
7. User Accounts,
Additional Terms, and
End User License
Agreements
Registration may be
required for the use of
certain portions of the
Web Sites (e.g., e-mail,
newsletters, fantasy,
games, sweepstakes,
contests, specialized
content downloads,
retail sales, wireless
alerts, etc.). In some
instances, these TOU and
separate end user
license agreements or
terms of use that set
forth additional
conditions may apply to
a service or product
offered via the Web
Sites. To the extent
there is a conflict
between these TOU and
the terms of any
applicable end user
license or similar
agreement, the end user
license or similar
agreement will control,
unless the additional
conditions expressly
state that these TOU
will control. In cases
where there are no
additional terms or
conditions stated for
any such registrations,
services or products,
these TOU will control.
Registration data and
certain other
information about you
are subject to the
privacy policy posted at
the Web Site on which
you are providing your
registration
information. Please read
that privacy policy for
information on how your
data will be handled.
If you
choose to provide
information to the Web
Sites, you agree to
provide only true,
accurate, current and
complete information. If
you create a user
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
user account. You are
responsible for
maintaining the
confidentiality of your
password, if any, and
for restricting access
to your computer, cell
phone (or other internet
access device, as
applicable) so that
others may not access
any password-protected
portion of the Web Sites
using your name, user
name or password in
whole or in part.
8. Promotions
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.
9. Software
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 the terms of
an end user license
agreement that
accompanies or is
included with the
Software (the "License
Agreement"). Please
carefully read the
License Agreement and
Paragraph 7 above 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 LICENSE AGREEMENT
APPLICABLE TO SUCH
SOFTWARE.
10. Copyrights and
Copyright Agents
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.
Company's copyright
agent for notice of
claims of copyright
infringement on or
regarding the Web Sites
can be reached as
follows:
By mail:
Attn: Wayne Hutchinson,
Copyright Agent
CBS Interactive Inc.
51 West 52nd Street
New York, NY 10019
(p) 212-975-4321
(f) 212-975-0117
By email:
designatedagent@cbs.com
NOTE: This contact
information is for
inquiries regarding
potential copyright
infringement only.
For other inquiries,
click here.
We
have a policy of
terminating the accounts
of users who (in our
reasonable discretion)
are repeat infringers.
11. Third Party Content
and Information
The
Web Sites contain
Content that is provided
for your convenience and
enjoyment. Third parties
provide some of the
Content. You should be
aware that the Content
might contain errors,
omissions, inaccuracies,
outdated information,
and inadequacies and
that the Content may be
subject to terms and
conditions, which may be
found on the Web Sites
or 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. . Third
party advertisers may
offer goods, services
and other materials to
you on the Web 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
advertiser. You agree
that Company will not be
responsible or liable
for any loss or damage
of any sort incurred as
the result of any such
dealings or the offering
of such products,
services, and other
Content on the Web
Sites. Under certain
circumstances, we may
permit third party users
to upload content, in
which event you may be
exposed to offensive,
indecent or
objectionable content.
Descriptions of, or
references to, products,
services or publications
within the Web Sites do
not imply endorsement of
that product, service or
publication.
12. Information You
Submit
From
time to time, the Web
Sites may contain
functionality through
which you can upload or
otherwise submit
information, data,
software, messages,
photographs, audio,
video, text and other
materials to the Web
Sites ("Your Upload
Information"). For
example, the Web Sites
may offer forums,
bulletin boards, wiki,
chat rooms or other
interactive areas ("User
Forums"). Company, its
parent, subsidiaries or
affiliates or the
directors, officers,
employees, or other
representatives of each
of them do not endorse
the content posted in
User Forums. Company
reserves the right, but
is not obligated, to
delete, move or edit
Your Upload Information,
in whole or in part,
submitted by you to a
User Forum for any
reason in their sole
discretion. Company
reserves the right to
suspend or terminate
your access to the Web
Sites and pursue all
legal remedies if we
believe your 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 for
Your Upload Information,
including, without
limitation, accepting
payment for the
inclusion of a logo,
brand or other
commercial content, in
Your Upload Information.
All of Your Upload
Information is your sole
responsibility. This
means that you, and not
Company, are entirely
responsible for all of
Your 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 messages
from third parties.
Company cannot ensure
the security of any
information you post on
publicly available areas
of the Web Sites. Under
no circumstances will we
be liable in any way for
any of Your Upload
Information including,
but not limited to, any
errors or omissions in
Your Upload Information,
or for any loss or
damage of any kind
incurred as a result of
Your Upload Information.
You represent that Your
Upload Information is an
original work by you or
you have all necessary
rights in it and 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 the TOU or any User
Agreement.
Except as otherwise
described in the posted
privacy policy or other
agreement on the Web
Site at which you
provide Your Upload
Information, Your 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
Your Upload Information
via the Web Sites, you
irrevocably grant to
Company, its parent,
subsidiaries,
affiliates, and partners
a non-exclusive,
worldwide, royalty-free
license containing,
without limitation, all
right, title and
interest in Your Upload
Information, including,
without limitation, all
patents, trademarks,
service marks, trade
names, trade identities,
copyrights, 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 whatsoever in
Your Upload Information.
You further agree that
Company, its parent,
subsidiaries,
affiliates, and partners
and the directors,
officers, employees,
licensees and other
representatives of each
of them will have the
unfettered right
throughout the universe,
in perpetuity, without
any credit or
compensation to you, to
use, reuse, modify,
alter, display, 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 of Your Upload
Information or portions
of Your Upload
Information, and your
name, voice, likeness
and other identifying
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
such Uploaded
Information. You hereby
waive any moral rights
you may have in and to
any of Your Upload
Information, even if
such material is altered
or changed in a manner
not agreeable to you.
You agree and understand
that Company, its
parent, subsidiaries,
affiliates, and partners
are not obligated to use
Your Upload Information
submitted through the
Web Sites or otherwise,
and may alternatively
choose to discard, and
limit or block access to
Your Uploaded
Information without any
liability whatsoever.
You acknowledge that
the Web Site, through
Company, its parent,
subsidiaries,
affiliates, and partners
undertakes no obligation
to pre-screen Your
Upload Information, but
that it has the right,
in its sole discretion
to modify, transmit over
various networks,
refuse, move, block
access to or remove any
of Your Upload
Information. You agree
that you must evaluate,
and bear all risks
associated with, the use
of any of Your Upload
Information including,
but not limited to, any
reliance on the
accuracy, completeness,
or usefulness of Your
Upload Information.
Since Company, its
parent, subsidiaries,
affiliates, and partners
may not pre-screen user
generated content, you
may bear legal
responsibility for
others' exposure to any
offensive indecent or
objectionable content in
Your Upload Information.
13. 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 PARENTS,
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; (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 OR
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 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.
14.
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 YOUR 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 ONE HUNDRED
DOLLARS ($100).
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 THIS WEB SITE IS
AT YOUR RISK. IF YOU ARE
DISSATISFIED WITH THE
WEB SITE OR ANY OF THE
CONTENT, YOUR SOLE AND
EXCLUSIVE REMEDY IS TO
DISCONTINUE ACCESSING
AND USING THE WEB SITE
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, TELEVISION
SHOW, MOTION PICTURE 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."
15. Indemnity
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. 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 15 and in no
event shall you settle
any such claim without
Company's prior written
approval.
16. 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 NEW
YORK, 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.
17. Jurisdiction and
Venue
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 New York, in the City
of New York, County of
New York, 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 17 of these TOU
and/or for entering any
judgment on an
arbitration award, shall
take place in the State
of New York, in the City
of New York, County of
New York. You waive the
defense of forum non
conveniens.
18. Miscellaneous
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.
19. Termination
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.
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