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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