Conditions of Use
Terms and Conditions of Use
Updated April 15, 2013
1. USE OF THE SERVICE
Company grants you permission to use the Service as set forth in this Agreement, provided that:
- you will not copy, distribute, disseminate, or disclose any part of the Service in any medium;
- you will not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose; and
- you will otherwise comply with the terms and conditions of this Agreement.
You may never use another User's account without permission.
2. YOUR ACCOUNT
You are fully responsible for your account, including use of the account by any third party and maintaining the confidentiality of your password.
You must notify Company immediately of any breach of security or unauthorized use of your account. Although Company will not be liable for your losses caused by any unauthorized use of your account, you shall be liable for the losses of Company or others due to such unauthorized use.
3. UNAUTHORIZED ACTIVITIES
You agree not to use or launch any automated system, including, without limitation, "robots", "spiders", "offline readers", etc., that accesses the Service in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser, and you agree not to aggregate or collate any of the content available through the Service for use elsewhere. You also agree not to collect or harvest any personally identifiable information, including account names, from the Service, or use the communication systems provided by the Service for any commercial solicitation purposes.
Company may permanently or temporarily terminate, suspend or otherwise refuse to permit your access to the Service without notice and liability if, in Company's sole determination, you violate any provision of the Agreement, including by carrying out any of the following prohibited actions:
- attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;
- taking any action that imposes, or may impose in Company's sole discretion, an unreasonable or disproportionately large load on Company's infrastructure;
- uploading invalid data, viruses, worms or other software agents through the Service;
- impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud or hiding or attempting to hide your identity;
- interfering with the proper working of the Service;
- framing, capturing, harvesting, collecting or creating hypertext or other links or connections to any part of the Website or Services without Company's prior written consent; or
- bypassing the measures we may use to prevent or restrict access to the Service.
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Company shall have no liability for your interactions with other Users or for any User's action or inaction.
4. USER CONTENT
Some areas of the Service may allow Users to post feedback, comments, questions, and other information (collectively, "User Content"). You are solely responsible for the User Content that you upload, publish, display, link to or otherwise make available (collectively, "post") on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.
You agree not to post User Content that:
- may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement or physical or mental illness to you, to any other person or to any animal;
- may create a risk of any other loss or damage to any person or property;
- may constitute or contribute to a crime or tort;
- contains any information or content that we believe to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening or otherwise objectionable;
- contains any information or content that is illegal;
- contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or
- contains any information or content that you know is not correct and current.
You agree that any User Content that you post does not and will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights (as defined below) and rights of publicity and privacy. Company reserves the right, but is not obligated, to reject and/or remove any User Content that Company believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright, the Writer's Guild of America or any other official registry, collection society or rights organization.
For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights and moral rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Company takes no responsibility and assumes no liability for any User Content that you or any other Users or third parties post or send over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display or otherwise make available or access through your use of the Service, is solely your responsibility. Company is not responsible for any public display or misuse of your User Content.
You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent or objectionable, and you agree that, insofar as the law allows, Company shall not be liable for any damages you allege to incur as a result of such User Content.
5. LICENSE GRANT
By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have a right to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display and make derivative works of all such User Content and your name, voice and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed for use in connection with the Service.
6. OUR PROPRIETARY RIGHTS
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music and User Content (the "Company Content"), and all Intellectual Property Rights related thereto, are the exclusive property of Company and its licensors.
Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Company Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to, or we may invite you to submit, comments or ideas about the Service, including, without limitation, about how to improve the Service or Company's products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, that we are free to disclose the Idea on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to you. You acknowledge that, by acceptance of your submission of an Idea, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
9. DMCA NOTICE
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Company's copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 ("DMCA"). For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit Company to contact you, such as your address, telephone number and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Engine Heat Tabs
2150 E Rio Salado Pkwy
Tempe, AZ 85288
Attn: IT Department
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs and attorneys' fees.
Please note that this procedure is exclusively for notifying Company and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Company's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances and at Company's sole discretion, members who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
10. ADDITIONAL REPRESENTATIONS AND WARRANTIES
You shall be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following:
You are at least 18 years of age, or if you are under 18 years of age you are either an emancipated minor (where that term is legally effective) or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
Your User Content and Company's use thereof as contemplated by this Agreement and the Service will not infringe any rights of any third-party, including, without limitation, any Intellectual Property Rights, privacy rights and rights of publicity.
Company may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees or royalties payable under any collective bargaining agreement or otherwise.
11. THIRD-PARTY WEBSITES, ADVERTISERS OR SERVICES
You agree to defend, indemnify and hold harmless Company, its shareholders, directors, officers, subsidiaries, other affiliated companies or their respective shareholders, directors, officers, members, managers, employees, contractors, and agents from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
- your use of and access to the Service, including any data or work transmitted or received by you;
- your violation of any term of this Agreement, including, without limitation, your breach of any of the representations and warranties above;
- your violation of any third-party right, including, without limitation, any right of privacy, publicity rights or Intellectual Property Rights;
- your violation of any law, rule or regulation of the United States or any other country;
- any claim or damages that arise as a result of any of your User Content or any that are submitted via your account; or
- any other party's access and use of the Service with your unique username, password or other appropriate security code.
13. NO WARRANTY
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND "WITH ALL FAULTS." USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS MEMBERS, SUBSIDIARIES, OTHER AFFILIATED COMPANIES AND LICENSORS DO NOT WARRANT THAT: (A) THE CONTENT ON THE WEBSITE IS ACCURATE, RELIABLE OR CORRECT; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS; (C) THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; (D) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (E) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH COMPANY OR THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
14. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS SHAREHOLDERS, OFFICERS, DIRECTORS, AFFILIATES, MEMBERS, MANAGERS, EMPLOYEES OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY:
- ERRORS, MISTAKES OR INACCURACIES OF CONTENT;
- PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE;
- ANY UNAUTHORIZED ACCESS TO OR USE OF COMPANY'S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN;
- ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE;
- ANY PROGRAMS, BUGS, VIRUSES, TROJAN HORSES, DATA OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD-PARTY;
- ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR
- USER CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD-PARTY.
IN NO EVENT SHALL COMPANY, ITS MEMBERS, SUBSIDIARIES, OTHER AFFILIATED COMPANIES OR THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS AND DIRECTORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO THE COMPANY DURING THE PRECEDING YEAR FOR THE SERVICES OR FOR THE USE OF THE SERVICES.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
THE SERVICE IS CONTROLLED AND OPERATED FROM FACILITIES IN THE UNITED STATES. COMPANY MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW, INCLUDING BUT NOT LIMITED TO EXPORT AND IMPORT REGULATIONS.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction.
You agree that:
- the Service shall be deemed solely based in Arizona;
- the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Company, either specific or general, in jurisdictions other than Arizona;
- this Agreement shall be governed by the laws of Arizona, without respect to its conflict of laws principles;
- in the event of a claim or dispute between you and Company that relates to or arises in whole or in part from the Service, you consent and agree to the exclusive jurisdiction of the federal and state courts located in Maricopa County, Arizona, unless submitted to arbitration as set forth below;
- in the event of a claim or dispute between you and Company that relates to or arises in whole or in part from the Services, you irrevocably waive the right to trial by jury and any jurisdictional and venue defenses other wise available;
- this Agreement, together with any other legal notices and agreements published by Company via the Service, shall constitute the entire agreement between you and Company concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect;
- no waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Company's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision; and
- unauthorized use of the Website, Site Materials or Services could cause irreparable harm to the Company and that in the event of such use, Company shall be entitled to an injunction in addition to any other remedies available at law or in equity.
For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000 USD, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules:
- the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration;
- the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
- any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
18. NOTIFICATION PROCEDURES
Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on the Website, as determined by Company in its sole discretion. Company reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement.