You Digital Media, LLC (the “Company”), offers the Use (as defined below) of www.YouFantasySports.com (the “Website”), subject to the following terms and conditions (“Terms and Conditions”). The viewer or user (collectively, the “User”) should read these Terms and Conditions carefully before using the Website. By continuing to view and use the Website, the User agrees to these Terms and Conditions and the privacy policy on the Website. Furthermore, by becoming a Registered User (as defined below) or by purchasing any Company product or service, these Terms and Conditions are further affirmed. If the User does not agree to the Terms and Conditions set forth herein or otherwise on the Website, the User must not use it. The Company retains the right to change the content of the Website or these Terms and Conditions at any time. Any changes made to these Terms and Conditions shall be effective immediately upon posting. The User’s continued Use of the Website constitutes acceptance of those changes.
Further, the User hereby agrees that his utilization of any product or service of the Company, including, without limitation, the purchase of any video product that incorporates User’s or any other third parties’ name, photograph, image, voice or other likeness (“Videos”), shall also be subject to these Terms and Conditions, as applicable, whether or not the sale is made through the Website.
The situating of the Website on the World Wide Web and/or Internet constitutes a continuing offer by the Company to the User to Use, as such term is defined below, the Website according to the Terms and Conditions. By utilizing the Website in any manner, including, without limitation, by viewing the same (collectively, a “Use”), the User accepts that offer and these terms and conditions and forms a binding contract between the User and the Company to adhere to the same. The User stipulates that sufficient consideration exists to create that contract, and that it is therefore binding upon him. Further, by his Use of the Website, the User makes the material representation upon which he wishes the Company to reasonably rely that he will adhere to the Terms and Conditions in connection with the User’s Use of the Website. If the User is dissatisfied with any of the Terms and Conditions, the User’s sole and exclusive remedy is to discontinue using the Website. Finally, by his Use of the Website, the User also stipulates that a violation of any of the Terms and Conditions will result in irreparable harm to the Company not compensable in money damages, such that, without limitation, injunctive relief shall be a necessary and appropriate remedy.
The Website contains images and contents, including but not limited to images, photographs, website text, software, pictures, graphics, video clips, audio clips, digital downloads, data, messages or any and all other information controlled by the Website (collectively, “Materials”).
General Disclaimer. Nothing contained on the Website shall be construed as a representation to be reasonably relied upon. In no event shall anything on the Website be construed either to create a duty of care or to constitute a representation by the Company of any sort to be relied upon by the User in any manner whatsoever. The Company takes no responsibility for information sent to it that is intercepted by third parties.
As further set forth herein, the Company takes no responsibility for the information contained on any website to which this one may be linked, as the same may be completely independent of the Website. Furthermore, the Company takes no responsibility for any communications between Users or posted by any User. User acknowledges and agrees that his participation in and on the Website is at his own risk. User acknowledges that the Company in its operation of the Website is simply serving as a passive conduit and does not control the quality, safety or legality of any interactions between Users of the Website, or any information posted by Users or third parties on the Website, nor does it endeavor to determine the truth or accuracy of any messages posted by third parties or any other information. Accordingly, User stipulates and agrees that the Company shall be entitled to the immunities afforded to an Interactive Computer Service under the Communications Decency Act, 47 USC § 230, as it may be amended. In no event shall the Company be liable to a User for damage to a User directly or indirectly to information contained within Third Party Content.
The Company is not responsible for the User’s Use of the Website. User shall use caution and be responsible for the inherent risks in dealing with other Users or third parties, whose identities have not been verified or who may be under age, acting under false pretenses or attempting to defraud others. User agrees to accept and assume such risks and acknowledges that the Company is not responsible for the acts or omissions of Users or third parties on the Website.
Moreover, this Website utilizes an independent, third party service provider, such as authorize.net, for the processing of payments, as is made available through the Website (“Payment Processor”). The User will be responsible for reviewing the terms and conditions of any agreement between he and the Payment Processor, which may include the way the Payment Processor collects information, the manner in which it processes payments and the duties and obligations that the User has with the Payment Processor.
If the User believes that he has been mistakenly billed, the User has the duty and obligation to notify the Payment Processor immediately of such error. The User must review the Payment Processor’s policy with regard to its notice requirements. The User releases this Website and the Company from all liabilities and claims of loss resulting from any error or discrepancy in billing. Without limitation, User acknowledges and agrees that Company has no obligation in regard to a dispute between the User and the Payment Processor, and Company need not intercede in any such transaction on a User’s behalf. Moreover, User specifically releases and waives any claim against the Company arising out of or otherwise related (whether directly or indirectly) to a dispute between User and the Payment Processor. Without limiting the foregoing, User acknowledges and agrees that the Company shall not be liable in the event of error, fraud, identity theft or other problems with credit card processing or online payment processing.
User acknowledges and agrees that none of the other Website users or their profiles are by or for the Company, with the sole exception of profiles that are created by the Company during the beta testing period. Rather, all such Users are independent, separate individuals or entities. Accordingly, User acknowledges and agrees that Company shall bear no liability, and User accordingly releases Company from any and all liability, and potential claims that could arise from User’s dealings with any other Users or other third parties. Without limitation, User acknowledges and agrees that Company shall in no way be liable for any loss or damages accruing to the User, any person or entity affiliated with the User or any other third party as a direct or indirect result of the making, accepting or distribution of a Video.
Content. By posting suggestions, ideas, comments or questions, or displaying, posting or publishing any text, images, photos, audio files, video files or other materials (collectively, the “User Content”) on the Website, submitting it to the Company or otherwise or submitting materials for incorporation within a Video or other Company product or service, User is expressly granting the Company a non-exclusive, worldwide, fully-paid, royalty-free, perpetual, irrevocable and fully sublicensable and transferable limited license to, in any form, media or technology now known or hereinafter discovered or created, modify, use, adapt, translate, create derivative works from, publicly perform, publicly display, republish, rebroadcast, transmit, retransmit, promote, reproduce, exploit and distribute the User Content, and any and all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property relating thereto. Moreover, User represents and warrants that he has all right and title in and to the User Content, and that no aspect of the User Content, or the posting thereof, shall violate the rights of any third party. This shall include, without limitation, copyrights, contract rights, trademark rights, rights of privacy, rights of publicity or any other rights of any third party. Without limitation, Company takes no responsibility and assumes no liability for any User Content. The User acknowledges that by posting User Content or otherwise providing User Content to the Website or the Company, he does so for the express purpose of posting the User Content for public review and/or comment in public forums as well as through private messaging. Accordingly, by providing User Content to the Website and/or the Company, in any manner, the User waives any and all privacy expectations that he, or any Appearing Individual (as defined below), may have in and to that content and authorizes the Website and the Company to freely use the same. By purchasing a Company product or service User grants Company an irrevocable license to incorporate the User Content into such products or services.
The Company takes no responsibility for the communications or information contained in any advertisement submitted by third parties on the Website or any posts or forum where Users or third parties may submit the same on the Website (collectively, “Third Party Content” for clarification purposes, it is stipulated that “Third Party Content” may include “User Content” of the User or any other user of the website). The views expressed in any Third Party Content are merely those of the poster or advertiser, and do not necessarily reflect the views of the Company or any person or entity affiliated with the Company. The Company has no obligation to screen in advance, nor is the Company responsible for screening or monitoring Third Party Content. Furthermore, the Company does not endorse any opinions or views expressed in the Third Party Content. The Company undertakes no duty and specifically disclaims any duty to do so, but retains the right in its sole discretion to: (a) review, delete, re-arrange or restrict access to any Third Party Content or other content submitted to the Company for any reason; (b) identify the User or any other user to third parties; (c) identify and/or disclose to third parties any Third Party or User Content or other personally identifiable information of the User when the Company determines that such identification or disclosure will (i) facilitate compliance with laws, including without limitation, complying with a court order or subpoena; (ii) help enforce these Terms and Conditions; (iii) protect the safety or security or any person or property; or (iv) otherwise benefit the Company, as determined by the Company in its sole discretion. The Company may, but shall be under no obligation to, expel Users and prevent their further access to the Website for violating the Terms and Conditions, applicable law, rule or regulation, or for conduct that is abusive, illegal or disruptive, or otherwise poses a potential liability for the Company. Without limitation, the Company may cancel Registered Users’ User Accounts (as defined herein) and/or User’s access to the Website at any time, for any or no reason.
Grant of Rights to Name and Likeness Rights. User hereby irrevocably grants and assigns to Company, its agents, successors, licensees and assigns the exclusive right to exhibit, distribute, transmit and/or otherwise exploit a Video or any other Company product containing any Name and Likeness Rights incorporated within the User Content, altered as Company deems fit in its sole discretion, in any and all media now or hereafter known, including without limitation, by means of still photography, motion pictures, radio, television, television motion pictures, video, soundtrack recordings, printing or merchandising, Internet, and in advertising and/or publicity in connection therewith. Without limitation, User hereby irrevocably grants and assigns to the Company, its agents, successors, licensees and assigns the non-exclusive right to utilize the name, fame, nickname, initials, biographical information and materials, trademarks, autograph, voice, video, film portrayals or performances, photograph, likeness and image or facsimile image, and any other means of endorsement of the User or any other person or third party depicted, incorporated or otherwise appearing within the User Content (such third party hereinafter being referred to as the “Appearing Individual” and the collective rights relating to the User and the Appearing Individual hereinafter being referred to as “Name and Likeness Rights”) in connection with (i) the advertising, promotion and sale of the Website; (ii) news or information; (iii) “institutional” advertising (i.e. advertising designed to create goodwill or prestige for the Company or the Website); (iv) other advertising or promotional purposes, including without limitation, advertising or promoting for the Website, the Company and the products or services of any sponsor of any of the foregoing; (v) any entertainment-related business, activities or products, including without limitation, books, magazines and video; and/or (vi) otherwise as set forth herein. With regard to the Name and Likeness Rights of any Appearing Individual, User makes the material representation and warranty upon which he seeks the Company to reasonably rely that he has obtained all necessary consents and approvals from such Appearing Individuals so as to have full authorization to grant the rights being granted to the Company hereunder. Company shall be entitled to utilize the Name and Likeness Rights in connection with the manufacture, promotion, sale and distribution of the any of the Website or Company products and services and on all brand identifications, packing materials, containers, promotional material, publicity, sales, advertising, newspaper, magazine, radio, television, cinema and similar media presently existing or that may exist in the future, in connection with the creation, manufacture, introduction, marketing, distribution, sale and advertising of the Website and/or the Company or its products and services. Further, User acknowledges and agrees that nothing contained herein shall be deemed to obligate Company to utilize, in any manner, the rights granted herein. User shall not, and shall ensure that an Appearing Individual does not, assert any claim for privacy, publicity, intellectual property, contractual, moral or similar rights held by the User or an Appearing Individual, nor shall they make a claim that the User Content or its incorporation into a Company product or service is objectionable or defamatory. User further acknowledges and agrees that the grant of rights herein shall endure in perpetuity.
Intellectual Property. Any and all intellectual property (including without limitation, trademarks, copyrights (including any extensions and renewals thereof), designs, themes, contests, or other creative expression and ideas), created or developed in the course of the Use of the Website or any Company products and services, including without limitation, the Videos, and all results and proceeds derived therefrom, shall be the sole and exclusive property of Company in perpetuity and throughout the Universe. Specifically, User agrees that all such intellectual property which (a) is created, enhanced or changed in any other way by User within the scope of this Agreement; (b) results from or is suggested by User; or (c) is conceived or reduced to practice during the performance of this Agreement (collectively, the “Intellectual Property”) shall be the sole and exclusive property of Company. User hereby irrevocably and exclusively agrees to assign, and hereby does quitclaim assign to the Company, all right, title and interest in and to the same. Moreover, in the event that any applicable law prohibits or limits such assignment, User hereby irrevocably, exclusively and royalty-free, licenses to Company all right, title and interest in and to the Intellectual Property. User further agrees to perform any and all acts and execute any documents requested by Company, if any, to perfect this assignment and/or license. User covenants and agrees to immediately notify the Company if it obtains any information or has any knowledge about a potential infringement of any of the Company’s intellectual property, including, without limitation that of the Videos or other Materials.
Registered User Account. Certain Users may elect to create an account with the Website, whereby they become registered users (“Registered Users”). A Registered User may provide the Company with certain information including, without limitation: name, username, email and password (collectively, the “User Account”). Each Registered User is responsible for maintaining the confidentiality of the User Account information. A Registered User shall be responsible for all uses of the User Account on the Website, whether or not authorized by the Registered User. Notwithstanding the foregoing, the Registered User shall immediately notify the Company of any unauthorized use of a User Account. Moreover, if any User learns of any unauthorized use of a User Account, such User shall immediately notify the Company thereof. A Registered User may cancel his User Account by sending an email to admin@youfantasysports.com. That email shall have in its subject line “Request to Terminate User Account.” Notwithstanding the foregoing, and as previously set forth, Company may cancel a User Account at any time, and without prior notice to the Registered User. All references herein to Users shall incorporate those Users that are Registered Users, unless specifically stated otherwise. Notwithstanding the foregoing, even if a Registered User cancels his account hereunder, it shall not relieve him from paying Company any fees that may be due to Company, as set forth herein. Moreover, in the event that a Registered User cancels his User Account, these Terms and Conditions, and the agreement created hereunder, including, without limitation, the grant of rights incorporated herein, will nevertheless remain in full force and effect. Without limitation, the Registered User acknowledges and agrees that regardless of whether or not he later cancels his User Account, the User Content that has been integrated into a Video or other Company product or service, the licenses and rights granted herein to the Company shall continue in perpetuity. Nevertheless, each Registered User acknowledges that by canceling his User Account his User Content (as defined below) and any Company products and services that he has purchased, including the Videos, may no longer be accessible to the Registered User on the Website once the account has been cancelled.
As further set forth in the Privacy Policy, information that Registered Users include in their User Account may be accessible to other Users and to the public. Accordingly, Registered Users shall not include in the User Account any information that is personal or otherwise of a nature that they do not wish to be public. Without limitation, telephone numbers, street addresses, last names and photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter should not be included in the User Account or otherwise submitted to the Website. Notwithstanding the foregoing, and despite any efforts that the Company may elect to undertake regarding the exclusion of the forgoing materials, Users acknowledge and agree that the Website may nevertheless contain inaccurate, inappropriate, offensive or sexually explicit material, products or services. The Company assumes no responsibility for those materials, and User acknowledges and agrees that it is undertaking the risk of being exposed to the same by utilizing the Website. In the event that the User becomes aware of any such inappropriate content being posted on the Website, it shall immediately notify Company of the same, by providing an email to admin@youfantasysports.com with a subject line entitled “Inappropriate Content.”
Access to Website - Limited License. The Website and the content provided therein, including without limitation, the Materials and other text, graphics, button icons, audio clips, video clips, digital downloads, photographs, biographical information, data compilations and software, may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed without the written permission of the Company. Notwithstanding the foregoing, the Company grants the User a limited non-exclusive license to make personal, non-commercial use of the Website and not to download (other than page caching) or modify any portion of the Website without the Company’s prior written approval, which may be unreasonably withheld. Notwithstanding the foregoing, the User is also granted a limited license to (i) download and/or distribute per the Company’s terms of sale any Video that he purchases and generates through the Website; and/or (ii) print copies of any Materials posted on the Website, but only for the User’s own use. This shall be the sole exception. Without limitation, the above-license shall not entitle any person or entity to use or download any portion of the Website for competitive uses, or without providing appropriate payment, where one is charged. The User acknowledges and agrees that he will not copy or distribute any portion of the Website to any other person or entity other than as expressly permitted in connection with a purchase. Except as expressly provided, all rights are reserved. The Company may terminate this license at any time by amendment of these Terms and Conditions.
Moreover, and notwithstanding the foregoing, if User exercises his rights under the above-referenced license, he must retain all copyright and trademark notices, including any other proprietary notices, contained in the Materials. User shall not, under any circumstances, alter, obscure or obliterate any of such notices. The use of such Materials or any portion of the Website on any other website or in any environment of networked computers is strictly prohibited without the Company’s advance written consent, which may be withheld in Company’s sole discretion.
User Conduct. By utilizing the Website, the User makes the material representation upon which the User wishes the Company to reasonably rely, that he will comply with the code of conduct set forth below:
(a) The User, when utilizing the Website, will not do so in an unauthorized manner, or in a manner which violates any legal or regulatory proscription or duty, including, without limitation, violating the Company’s intellectual property or that of another;
(b) The User will not utilize the Website in a manner that is harmful to the Company or any other person or entity;
(c) The User, through the Website, will not harass, or advocate the harassment of, any other person;
(d) The User will not utilize the Website to exploit people in a sexual and/or violent manner;
(e) The User will not utilize any information that the User gained as a result of using the Website to illegally or improperly violate another person’s or entity’s privacy rights.
(f) The User shall not utilize the Website to post any information that would create a privacy or security risk to any person, including without limitation posting a person’s address, telephone number, social security number or credit card number(s);
(g) The User shall not denigrate any ethnic, racial, sexual or religious group by parody, stereotypical depiction or otherwise;
(h) The User shall not encourage or otherwise depict glamorized drug, alcohol or other substance abuse;
(i) The User shall not upload, provide links to or otherwise provide any content or information that is infringing, defamatory, obscene, pornographic, threatening, abusive, illegal or otherwise improper or objectionable, as determined by the Company in its sole discretion;
(j) The User shall not upload, provide links or otherwise provide any content or information that is infringing or violates a right of a third party, including, without limitation, copyright, patent, trademark, secret or other proprietary or contractual rights; right of privacy; right of publicity; or which would violate any confidentiality obligation of the User.
(k) The User shall not utilize any of the Company’s trademarks as metatags on other websites or otherwise use the Company’s trademarks for User’s own advertising or pecuniary gain, including without limitation utilization as Google® AdWords;
(l) The User shall not utilize the Website in regard to any commercial activities, advertising or sales, except as specifically authorized herein, without the prior written consent of the Company, which may be unreasonably withheld;
(m) The User shall not use any robot, spider or other intelligent agent software or device to access or monitor the Website in any manner;
(n) The User shall not access the Website more than ten (10) times a day;
(o) The User will not restrict any other user from properly using the Website, including without limitation, by way of “computer hacking” or otherwise altering the software or functionality of the Website and its underlying programs;
(p) The User will not imply that any of his statements are endorsed by the Company, or that User is otherwise associated with the Company in any manner;
(q) The User shall not solicit, buy, sell, share or otherwise disseminate any other User’s username, password or other personal information or any other User’s User Content;
(r) The User shall not forge headers or otherwise manipulate web pages or other aspects of the Website in a manner so as to try to disguise Third Party Content;
(s) The User will not use the Website if the User is not able to form legally binding contracts, is under the age of eighteen (18), is not a resident of the United States, or has been temporarily or indefinitely suspended from the Website;
(t) The User will not transmit any material, non-public information about any person or entity without the proper authorization to do so;
(u) The User will not transmit any advertisements, solicitations or any unsolicited communications through the Website without the Company’s express permission to do so, which may be unreasonably withheld;
(v) The User will not cover or obscure any advertisements located within the Website;
(w) The User will not post to the Website any incomplete, false or inaccurate information or information which does not belong to the User;
(x) The User will not revise, modify, reverse engineer or in any way alter any portion of the Website or its contents or underlying technology;
(y) The User will not “frame” or “mirror” any part of the Website;
(z) The User will not utilize any device to enable him to circumvent the structure of the Website and/or spam or flood the site;
(aa) The User will not collect or store any information about other Users to the Website without the Company’s express permission to do so, which may be unreasonably withheld;
(bb) The User will not sell or otherwise transfer his User Account;
(cc) The User shall not impersonate any other person and/or falsely state; otherwise misrepresent that he has an affiliation with any other person or entity; or otherwise mislead, deceive or defraud the Company, another User or any other party, including without limitation, utilizing another person’s username, password, User Account information or another person’s name, likeness, voice, image of photograph;
(dd) The User will not create a database utilizing any information found within the Website; and
(ee) The User will not record any streaming audio or video located on the Website.
User acknowledges and agrees that the Company cannot and does not assure that other users are or will comply with the above user conduct standards, or any other provisions of these Terms and Conditions. As between the User and the Company and/or Website, the User hereby assumes all risk of harm or injury resulting from his use of the Website and any such lack of compliance by other users.
Sales. The product and pricing information contained on the Website is subject to change at the Company’s sole discretion. The listing of products and services for sale, and applicable pricing is subject to availability. The Company will not knowingly accept any order from a person under 18 years of age.
The User hereby makes the material representation upon which he wishes the Company to rely that: (a) he is at least 18 years of age; (b) he is a resident of the United States (c) he is authorized to register with the Website, provide information to the Company and/or make a purchase; and (d) he is bound to that registration, provision of information or sale and to the Company’s applicable cancellation policies, if any. Further, User covenants and agrees to: (e) provide certain information to the Company with regard to the mailing address and billing address, including, without limitation, personally identifiable information; (f) accurately and fully provide any such information; and (g) provide payment in good and sufficient funds. Verification as to the accuracy of the information provided may be required prior to the Company’s acceptance of registration on the Website or offering of its products or services on Website. The User acknowledges that submission of a purchase request does not, in and of itself, entitle User to any the Company’s products or services. The User acknowledges that the purchase of the Company’s products and services may be subject to additional terms and conditions set forth by the Company.
In the event that Company does not receive payment from the Payment Processor or the credit card company through which the User has made payment, the User shall be responsible to pay all amounts due to the Company, upon Company’s demand for the same. In the event that the Customer fails to timely pay any amount due to the Company, interest shall accrue at a rate of 18% per annum, or the highest amount allowed by law, whichever is less. Interest shall be calculated based upon the total amount that User owes to the Company at that time.
Pricing. All prices displayed on the Website are exclusive of tax and any shipping, are quoted in U.S. Dollars, are valid and effective only in the United States and are subject to change. Any prices listed herein shall be solely for purchases made through the Website. Inadvertent errors in advertised prices are not binding on the Company and may be adjusted by the Company at any time in Company’s sole discretion. Neither the Website nor the Company offers any price adjustments based on different sale prices on products offered through different sale modalities. Moreover, any sales tax on products or services purchased shall be collected through the Payment Processor as necessary.
Order Acceptance / Confirmation. User expressly acknowledges and agrees that receipt of an electronic order form, or other form of order, does not signify Company’s acceptance of an order, nor does it constitute confirmation of Company’s offer to sell to User. The Company reserves the right at any time after receipt of User’s order to accept or decline the order for any or no reason, in its sole discretion.
Delivery of Products and Services. All orders placed through use of the Website are subject to availability and will be delivered to the User via website display and/or email delivery to the email address provided in the User’s User Account. The select mode of delivery for any order shall be as determined by Company in its sole discretion. Moreover, User acknowledges and agrees that once the product or service is delivered to the email address on file and/or is displayed as a screenshot, the transaction shall be deemed complete. In the event that a User’s order does not arrive, User must notify the Company, in writing, of non-delivery within twenty four (24) hours of User placing its order with the Company. Failure to provide written notice within that time shall waive any and all claims, including without limitation, claims for any reimbursement of the purchase price.
Refunds and Returns. All sales made through this Website are final. Cancellations, exchanges, refunds and returns are not permitted and will not be accepted for any reason whatsoever.
Abuse of the Website. If, in the Company’s sole discretion, it determines that a User is creating potential liabilities, or acting inconsistently with these Terms and Conditions, the Company may, without limitation, limit, suspend or terminate the Registered User’s User Account, prohibit access to the Website, remove hosted User Content, and take technical and legal steps to keep User off the Website. User otherwise acknowledges and agrees that this is in the Company’s sole discretion and that it shall not be obligated to do so. Company reserves the right to investigate and take appropriate legal action against any violation of these Terms and Conditions. All Users agree to cooperate in this investigation regardless of whether it is related to User Content posted by him or posted by, or otherwise relating to, another User. Notwithstanding the foregoing, User acknowledges and agrees that Company can terminate User’s right to Use this Website or any portion thereof at will, without notice and without cause. Such termination may be exercised by the Company in addition to any other rights and remedies that the Company may have available to it, and without any liability whatsoever.
User acknowledges and agrees that Company shall not be liable to him or to any other person or entity for the termination of Use of this Website, or any claims related to the termination or suspension of Use or the Website or a termination in the availability of the Materials contained on the Website
Copyrights; Restrictions on Use. The Materials on the Website are copyrighted by the Company, its affiliates or its licensors under United States and international copyright laws, are subject to other intellectual property and proprietary rights and laws, and are owned by, or licensed to, the Company, its affiliates or its licensors. Moreover, the Materials, and the Website as a whole, should be treated and protected as a collective work or compilation under US Copyright and other laws. Moreover, all individual articles, columns, postings and elements making up the Materials or otherwise contained in the Website are also copyrighted works. The Materials may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale or redistributed in any way without the prior written permission of the Company and its applicable licensors, with the sole exception that the User may download any the Video that he purchases, or any Materials that are intentionally made available for downloading and/or print copies of the Materials, so long as it is for User’s personal, noncommercial use. User must abide by all copyright notices, information or restrictions contained in or attached to any Material. User agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of the Website, including, without limitation, any of the Materials or access to the Website. Without limitation, User shall not offer any part of the Materials, including without limitation the Videos, for sale or distribute it over any other medium of any kind, whether now known or hereinafter discovered, including, without limitation, over-the-air television, radio broadcast, computer or Internet broadcast, or hyperlink framing on the Internet without the prior written consent of Company, except (a) as it directly relates to the User Content to which the User owns the proprietary rights and (b) as is specifically anticipated and authorized in connection with a purchase of a Video.
Further, images of people or places displayed on the Website and on or within a Video, or other products and services sold on the Website, other than those submitted by the User, are either the property of, or used with permission by, the Company. The use of these images by User, or any third party, is strictly prohibited. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes. Notwithstanding the foregoing, Company does not claim any ownership rights in the User Content. Rather, all such rights shall be retained by the User, to the extent that the User has such rights under applicable law. User acknowledges and agrees that the Company’s acknowledgement of the User’s right to the intellectual property rights in his User Content does not constitute a legal opinion or legal advice, but rather, is intended solely as an expression of the Company’s intention to not require the User to forego certain rights or assign certain rights to the Company with regard to the User Content, subject to these Terms and Conditions.
Copyright Infringement. It is the policy of the Company to respond expeditiously to claims of copyright infringement. The Company will promptly process and investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act and other applicable intellectual property laws. The Company may elect to terminate access for any User who it believes in its sole discretion to be an infringer, regardless of whether proven or not.
The sole and exclusive protocol for notifying Company of an infringement upon a third party’s intellectual property is to provide written notice (“DMCA Notice”) to Company as set forth herein or otherwise provided by the DMCA, as it may be amended from time to time. The DMCA Notice must include (i) the signature of a person authorized to act on behalf of the owner of the copyright interest (“Copyright Owner”); (ii) a description of the copyrighted work that is believed to have been infringed upon; (iii) a description of precisely where the alleged infringing work is located on the Website; (iv) the Copyright Owner’s mailing address, telephone number and email address; (v) a statement by the Copyright Owner that it has a good-faith belief that the disputed use is not authorized by the Copyright Owner, its agent, or the law, or is not otherwise being conducted by another authorized owner or licensee of the work; and (vi) a statement by the Copyright Owner, made under penalty of perjury, that the information set forth in the submitted written notice is accurate and that it is the Copyright Owner or is authorized to act on the Copyright Owner's behalf. The DMCA Notice should be immediately delivered to the Company by certified mail return receipt requested or by commercial carrier at the addresses set forth below in the “Notices” provision and directed to the attention of the “Copyright Agent.” User acknowledges and agrees that his failure to properly comply with the requirements of the law and/or this provision may make his DMCA Notice invalid.
Trademarks. “You Digital Media, LLC,” “YouFantasySports” and variations thereof, as well as certain other of the names, logos and materials displayed on the Website constitute trademarks, tradenames, service marks or logos ("Marks") of the Company or other related entities. User is not authorized to use any such Marks or any variations thereof. Ownership of all such Marks and the goodwill associated therewith remains with the Company or other related entities.
Communications. THE COMPANY MAKES NO GUARANTEE OF CONFIDENTIALITY OR PRIVACY WITH REGARD TO ANY COMMUNICATION MADE BY OR THROUGH THE WEBSITE, WHETHER TO THE COMPANY, THROUGH A POST TO THE WEBSITE OR TO ANOTHER USER. The Company specifically reserves the right, and User hereby authorizes Company, to monitor transmissions over the Website and its related networks for maintenance, service quality control assurance or any other purpose permitted by the Electronic Communications Privacy Act, 18 U.S.C. §2701, et. seq.
Notices. All notices or other communications to the Company, if any, that are to be given under these Terms and Conditions must be in writing, which shall be given by delivery to the address set forth below by way of either personal delivery, certified mail, return receipt requested, two-day mail or overnight mail by a commercial carrier. Notices to the Company shall be deemed given only upon receipt. Notices to the Company shall be addressed as set forth below unless it changes the address in writing by updating these Terms and Conditions. The address for giving notice to the Company is as follows:
You Digital Media, LLC
84 Elm Street, 2nd Fl.
Westfield, New Jersey 07090
Notices to User shall be provided by the Company via email or any other address which the Company reasonably believes to be associated with the User. Notice shall be deemed effective upon delivery of the same by the Company. Moreover, and without limiting the foregoing, by Using the Website, the User acknowledges and agrees that he is communicating with the Company electronically, and consents to receive communications from the Company electronically. Company may communicate, and provide effective notice to the User, by sending him emails or by posting notices on the Website. User acknowledges and agrees that all agreements, notices, disclosures and other communications that the Company may provide to him electronically is effective; satisfies any legal requirement that such communication be in writing; and shall be deemed delivered to him.
Indemnification. The User agrees to indemnify, hold harmless and defend the Company, its affiliates, and any members, shareholders, directors, officers, employees or agents (collectively, “Company Parties”) of any of the foregoing with respect to any claim, demand, cause of action, debt, liability, damages, costs or expenses, including reasonable attorneys’ fees and expenses of the Company Parties’ selected attorney(s), arising from any third party claim relating to (i) User’s infringement of any intellectual property of any person or entity, including without limitation, patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights; (ii) any failure by the User to comply with these Terms and Conditions, specifically including the “User Conduct” as set forth above; (iii) the User’s Use of the Website; (iv) User’s defamation, libel, slander or other tortious act against a third party; (v) a breach of any representations, guarantees, covenants and/or warranties provided by one User to another User; and/or (vi) any act or omission or willful misconduct on the part of the User that results in a claim for breach of any representations, warranties or covenants made herein against any of the Company Parties. Without limiting the foregoing, the User specifically indemnifies and shall defend and hold the Company Parties harmless from any and all liability, claims, actions, damages, liabilities, losses, costs and expenses of any kind (including, without limitation attorneys’ fees, unless otherwise provided by statute), arising from any third party claim based on slander, libel, defamation, invasion of privacy, violation of rights of right of publicity, personality and/or civil rights, depiction in a false light, intentional or negligent infliction of emotional distress, personal injury, copyright infringement and/or any other tort and/or damages arising from or in anyway relating to User’s use of the Website including the User’s use of any materials or information that refer or relate to the third party, or any of the products and services offered therein, the exploitation of those products and services, the Company’s dissemination or other exploitation of any Video and/or Company’s the use of any of third party’s name, photograph, voice and/or other likeness that has been utilized or otherwise submitted to the Company by the User, including without limitation that of the Appearing Individuals.
Attorneys’ Fees. If Company or any of the Company Parties undertake any action to enforce these Terms and Conditions, such party will be entitled to recover from the User, and User hereby agrees to pay, any and all attorneys’ fees and any cost of litigation, in addition to any other relief at law or in equity to which such party may be entitled. In such event, the Company shall be entitled to recover all costs including both actual pre-judgment and post-judgment attorneys’ fees and costs, involved directly or indirectly in its enforcement efforts, whether or not it does so through institution of formal legal proceedings.
Member Disputes. User is solely responsible for his interactions with other Users. Company reserves the right, but shall have no obligation, to monitor or otherwise involve itself in any disputes among Users.
Privacy. Please refer to the Company’s Privacy Policy. The User is bound to the terms contained therein.
Protection of Children. No one under the age of eighteen (18) is permitted to Use the Website without the involvement of a parent or guardian. If the User is a parent and believes the Company may have inadvertently collected such information from User’s child, please notify the Company immediately by sending an email to admin@youfantasysports.com. Moreover, Users should be aware of the fact that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist the User in limiting access to material that it considers to be harmful to minors. For convenience sake only, examples of some such protections are listed below. However, as otherwise set forth herein, the Company does not accept any liability for the products and services provided by any third parties. Nor does the following listing constitute, in any way, an endorsement of these products by the Company. Rather, it is being provided only as an example and for the User’s convenience.
· Net Nanny – available at http://www.netnanny.com
· SafeEyes – available at http://www.internetsafety.com/safe-eyes
· Crawler Parental Control – available at http://www.crawlerparental.com
Cookies. The Company specifically acknowledges and hereby notifies User that it may utilize “cookies” in connection with the operation of the Website. The User agrees that such cookies may be placed on his computer, in connection with his access to, and use of, the Website. Nevertheless, the User should note that he can likely make adjustments to his web browser which may enable it to control the use of cookies. Such action, however, could affect the User’s Use of the Website.
DISCLAIMER. User explicitly agrees that Use of the Website or any of the Materials contained herein, including without limitation, the Videos and any other Company products or services, is at his own and sole risk. The Website and all Materials contained herein are provided "AS IS," without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. Neither the Website nor the Company make any representations or warranties that the Website or any Materials contained therein will be uninterrupted, timely, secure or error free; nor does the Website or the Company make any representations or warranties as to the quality, fitness, truth, accuracy, currency, reliability or wholeness of the Website or any of the Materials contained herein. The Website may be modified or discontinued at anytime with or without reason and with or without notice to the User, without liability to any User or third party. The User also understands and agrees that any material and/or data downloaded or otherwise obtained through the Use of the Website or any of the Materials contained herein is done at his own discretion and risk and that the User will be solely responsible for any damage to his computer system or loss of data that results from the download of such material and/or data. The User understands that the Company cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. The Company makes no warranty regarding any use or disclosure of confidential or private information that User may provide. The Company may change any of the Terms and Conditions and/or information found on the Website at any time without notice. The Company makes no commitment to update the information found on the Website. The warranties and representations set forth in these Terms and Conditions are the only warranties and representations with respect to these Terms and Conditions, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the User and the Company or by operation of law, including without limitation warranties of merchantability and fitness for a particular purpose, all of which are hereby specifically disclaimed. None of these warranties and representations will extend to any third person. Some jurisdictions do not allow the elimination of certain warranties, so some of the above exclusions may not apply to the User. However, this shall be limited and only those prohibited by that jurisdiction shall be excluded and severed from the remainder of the other warranties, limitations and exclusions which shall remain in full force and effect to the maximum extent permitted by law.
Further, User explicitly agrees that the Website, the Company’s products and services, including without limitation the Videos, and any other Materials and/or any Third Party Content, is being provided for informational and entertainment purposes only. User further acknowledges that aspects of the Materials may be subject to terms and conditions of other agreements to which Company is a party. All such information is “AS IS,” “WITH ALL FAULTS,” and User utilizes the same at his own risk. Further, Company is not responsible for the conduct of other Users, whether online or offline. Under no circumstances shall the Company be responsible for any loss or damage, including, without limitation emotional distress, other personal injury or death, resulting from the use of the Website, from any User Content or Third Party Content, or the conduct of any other Users, whether online or offline. The Use of the Website is “AS-IS” and the Company, as set forth above, expressly disclaims any and all warranties.
Limitation of Liability. COMPANY ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, USER’S COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF ITS ACCESS TO, USE OF OR BROWSING IN THE WEBSITE OR HIS DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE WEBSITE. EXCEPT WHERE SPECIFICALLY REQUIRED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH (I) ANY USE OF THIS WEBSITE OR CONTENT FOUND HEREIN, (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS WEBSITE FOR COMMUNICATING WITH OTHER USERS), OR (III) THE PERFORMANCE OR NON-PERFORMANCE BY COMPANY, INCLUDING, BUT NOT LIMITED TO, NON-PERFORMANCE RESULTING FROM BANKRUPTCY, REORGANIZATION, INSOLVENCY, DISSOLUTION OR LIQUIDATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY.
If, notwithstanding the foregoing, Company should be found liable for any loss or damage which arises out of or is in any way connected with any of the above described functions or uses of the Website, any Materials or any of the Company’s other goods or services, Company’s liability shall in no event exceed, in the aggregate, the greater of (a) the membership fee for any one month; or (b) US$100.00. Some states do not allow limitations of liability, so the foregoing limitation may not apply to the User.
Release. BY UTILIZING THE WEBSITE, USER HEREBY RELEASES, REMISES AND FOREVER DISCHARGES AND GIVES UP ANY AND ALL CLAIMS AND RIGHTS WHICH IT MAY HAVE AGAINST THE COMPANY AND ITS AFFILLIATES, PARTNERS, SERVICE PROVIDERS, VENDORS AND CONTRCTORS AND EACH OF THEIR RESPECTIVE AGENTS, ATTORNEYS, SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES BASED ON ANY ACT, EVENT OR OMISSION, AND FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO OR ARE CONNECTED WITH THE USE OF THE WEBSITE AND GOODS AND SERVICES RELATED THERETO. USER FURTHER WAIVES, RELEASES AND GIVES UP ANY AND ALL CLAIMS AND DEFENSES ARISING FROM OR RELATING TO ANY ACT, EVENT OR OMISSION DIRECTLY OR INDIRECTLY RELATED TO THE USE OF THE WEBSITE. WITHOUT LIMITATION, THE USER FURTHER UNCONDITIONALLY AND IRREVOCABLY FOREVER RELEASES, DISCHARGE AND HOLDS HARMLESS THE COMPANY PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION ATTORNEYS’ FEES, UNLESS OTHERWISE PROVIDED BY STATUTE), INCLUDING WITHOUT LIMITATION THOSE BASED ON SLANDER, LIBEL, DEFAMATION, INVASION OF PRIVACY, VIOLATION OF RIGHTS OF RIGHT OF PUBLICITY, PERSONALITY AND/OR CIVIL RIGHTS, DEPICTION IN A FALSE LIGHT, INTENTIONAL OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, PERSONAL INJURY, COPYRIGHT INFRINGEMENT AND/OR ANY OTHER TORT AND/OR DAMAGES ARISING FROM OR IN ANYWAY RELATING TO USER’S USE OF THE WEBSITE OR ANY OF THE PRODUCTS AND SERVICES OFFERED THEREIN, THE EXPLOITATION OF THOSE PRODUCTS AND SERVICES, THE DISSEMINATION OR OTHER EXPLOITATION OF ANY VIDEO AND/OR THE USE OF ANY OF THE NAME AND LIKENESS RIGHTS. THIS FURTHER INCLUDES, WITHOUT LIMITATION, ANY CLAIM WHICH COULD BE ASSERTED NOW OR IN THE FUTURE UNDER (I) THE COMMON LAW; (II) ANY OF THE PARTIES POLICIES, PRACTICES OR PROCEDURES; AND/OR (III) ANY FEDERAL AND/OR STATE STATUTES OR REGULATIONS. If User is a California resident, he hereby waives California Civil Code § 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” User hereby acknowledges, agrees and stipulates that this waiver is being made consciously and with full understanding of the rights that the User may be giving up.
Notwithstanding any termination of the User’s access to the Website or any termination of a User Account, User acknowledges and agrees that the representations and obligations of the User, as well as the disclaimer of warranties, limitation of liability and release of liability hereunder shall survive and continue in perpetuity.
Successors and Assigns. Whenever the term “the Company” is used in connection with these Terms and Conditions, and in accordance with the other modes and methods set forth in the other webpages of the Website regarding its use in regard to a right, protection or benefit, it shall be construed to encompass the Company, its related entities, successors, assigns, shareholders, officers, directors, members, officers, employees, attorneys and agents. Further, the term “User” used in connection with these Terms and Conditions shall include his/her/its heirs, related entities, successors, assigns, shareholders, directors, officers, members, employees and agents.
Authorized Permission for Use. The User shall be considered an entity if the individual accessing the Website is doing so on behalf of an entity or is utilizing that entity’s computer system in connection with a task (either paid or unpaid) for that entity. If the User is an entity, the person using the Website on its behalf hereby makes the material representation upon which he wishes the Company to rely that he is authorized to bind that entity to the Terms and Conditions set forth above, as well as any other obligations imposed or undertaken through Use of the Website. The Company reserves the right to terminate the User’s access to, and use of, whether as an individual or entity, the Website and any of its contents, including, without limitation, the Materials, or use of any of the Company’s services at its sole discretion and without any advance notice to the User.
Dispute Resolution. A User may not institute a suit at law or equity regarding any dispute, whether directly or indirectly related or collateral to these Terms and Conditions or to the use of this Website or any of the Company’s products or services. All such claims or disputes, whether between or among the User(s) and the Company, shall be submitted to binding arbitration administered by a single arbitrator. Without limitation, any dispute over the arbitrability of a matter shall be specifically reserved for the arbitrator to exclusively hear, and shall not be submitted to the court. However, notwithstanding the foregoing, either prior to, during or after the arbitration process, either Company or a User may institute a suit in equity for a temporary injunction (a) to preserve the status quo; (b) to enjoin a breach or threatened breach of these Terms and Conditions; (c) to obtain specific performance; (d) to compel the arbitration or further its purposes and/or to enforce a settlement or award of such arbitration; and/or (e) for any other equitable relief.
Arbitration Demand Procedure. A claim or dispute by a User or the Company may only be submitted to arbitration if the opposing party is first served with a written demand for same. The party requesting arbitration (the “Requesting Party”) shall provide the opposing party (the “Opposing Party”) with a recommendation for a suggested arbitrator (the “Suggested Arbitrator”) in conjunction with the written demand for arbitration. If the Opposing Party objects to the Suggested Arbitrator, such objection must be set forth in writing and submitted to the Requesting Party within five (5) days, or the objection shall be waived and the Suggested Arbitrator will be deemed appointed. The objection shall be accompanied by the Opposing Party’s recommendation for an arbitrator. The Requesting Party shall have five (5) days to submit his objection to the Opposing Party’s recommendation. Thereafter, should the parties be unable to agree upon an arbitrator, the arbitrator shall be chosen by a determination of a court of competent jurisdiction. Either party may make a motion for this determination.
Conference, Discovery and Motions. The arbitrator shall conduct an initial telephone or in-person conference, in the form of a pre-hearing conference to discuss arbitration procedure, within ten (10) days of the arbitrator’s appointment. Both parties to the arbitration shall submit and serve on the other party arbitration statements no later than two (2) days prior to the conference. The Company and the User shall each have the following procedures available to them, in any order or all at once, with regard to the arbitration: (a) they may each serve up to thirty (30) interrogatories inclusive of subparts which shall be answered within ten (10) days; (b) they may each serve twenty (20) document requests inclusive of subparts which shall be answered within ten (10) days; (c) they may each serve up to thirty (30) requests for admissions which shall be answered within ten (10) days; (d) they may each take up to five (5) depositions, which may be scheduled upon ten (10) days notice, as to which all Parties shall cooperate in producing and locating witnesses (third party witness attendance may be compelled by issuance of a subpoena); (e) they may each serve a summary judgment motion(s) or motion(s) to dismiss on the basis that the matter should be disposed of in whole or in part as a matter of law; and (f) either party to the arbitration may serve a motion(s) to dismiss or suppress based upon a failure to respond to discovery. Such motions may be served at any time twenty (20) days after the arbitrator is appointed. The responding party will have ten (10) days to respond to the motions. The motions shall be heard by the arbitrator and disposed of within ten (10) days thereafter and the arbitrator may allow replies and sur-replies in his discretion. Notwithstanding anything to the contrary herein, service under this Dispute Resolution clause shall be deemed complete upon mailing to a party’s counsel, or if pro se, to the party directly with an additional three (3) day period for service by regular mail. Time shall be deemed of the essence in regard to any procedures set forth herein and any requests for extension shall be considered by the arbitrator only upon a showing of good cause. Oral argument shall not be required unless a party requests it. The standards for deciding motions shall be those set forth under the case law of the court having competent jurisdiction over this matter.
Determination, Award and Costs. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, specific performance of any obligation created under these Terms and Conditions, or the issuance of injunctive relief. The award rendered by the arbitrator in any arbitration under these Terms and Conditions is final and binding on the parties. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof. Each party to the arbitration perform all acts, including the execution and delivery of further documents, as the arbitrator determines is necessary or desirable to confirm and carry out the terms of the award rendered. Each party shall initially bear its own costs, expenses and administrative fees and an equal share of the arbitrator’s fees until such time, if at all, a party is awarded its costs, expenses and fees by the arbitrator. In the event that there is a disproportionate ratio of plaintiffs, defendants or other parties, the arbitrator may consider a reallocation of arbitrator’s fees and expenses in his sole discretion. If either party needs a translator they shall equally bear that expense. If a third party witness requires a translator, the party calling the witness shall bear the expense. Each party shall bear their own travel costs and those of any party or witness they bring. If a party or his attorney does not appear at the arbitration hearing the arbitrator shall strike its claims and/or suppress its defenses and conduct a proof hearing. The arbitration award may be appealed to a court of competent jurisdiction solely on the basis that the award was arbitrary or capricious.
Jurisdiction. The User utilizing the Website agrees that the laws of the State of New Jersey shall govern these terms and conditions and any dispute, controversy or claim directly or indirectly related to such Use. Further, the User consents to the jurisdiction of the Superior Court of the State of New Jersey or, if federal jurisdiction exists, at the option of either party, to the jurisdiction of the United States District Court for the District of New Jersey, Newark Vicinage, to seek injunctive relief, compel an arbitration and/or enforce an arbitrator’s award. Any arbitration shall be conducted in Union County, New Jersey. Service of the written notice to initiate the aforementioned arbitration shall be deemed complete when sent either as required by Court procedure or by (i) electronic mail to any of the User’s current or future electronic mail addresses; (ii) ordinary mail or ordinary or two-day mail by a commercial carrier, in the event a regular mailing address has been provided by the party upon which service is being effected or is otherwise determined by the serving party; or (iii) otherwise in accordance with the laws and procedures of the State of New Jersey. The User agrees that regardless of any statute or law to the contrary, any claim or cause of action by User arising out of or related to use of the Website or any services or goods offered or sold by the Company must be filed within one (1) year after such claim or cause of action arose or be forever barred and therefore the statute of limitations is limited to one (1) year.
Further Assurances. The User covenants and agrees to perform all further acts and execute all supplementary instruments or documents which may be requested by the Company to carry out the provisions and effectuate the intent of these Terms and Conditions.
Assignment. Company may freely assign its rights and obligations in and to these Terms and Conditions. The User acknowledges that he may not assign, transfer or sell his rights or obligations under these Terms and Conditions without Company’s advance written consent, which may be unreasonably withheld. Any purported assignment without Company’s consent shall be deemed null and void.
Severability. One or more provisions of these Terms and Conditions may be legally prohibited or otherwise unenforceable in certain jurisdictions and not others. In such event, these Terms and Conditions shall be construed in a manner that is consistent with prevailing law in the jurisdiction in which it is enforced. Therefore, if any provision of these Terms and Conditions is prohibited or otherwise unenforceable in a jurisdiction where it is being enforced, (a) it shall nevertheless be enforced to the fullest extent allowed by that prevailing law and (b) all other provisions of these Terms and Conditions shall remain in full force and effect and shall not be invalidated or rendered unenforceable.
Links to Other Sites. The User acknowledges and agrees that the Company has no responsibility for the accuracy or availability of information provided by websites to which a User may link from the Website (“Linked Sites”). Links to Linked Sites are provided as a convenience to the User, and do not constitute an endorsement by or association with the Company of such sites or the content, products, advertising or other materials presented on such sites. The Company does not author, edit or monitor these Linked Sites. User acknowledges and agrees that the Company is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such Linked Sites. If User accesses a Linked Site, he does so at his own risk.
No Third Party Beneficiaries. These Terms and Conditions are not intended to be for the benefit of, and shall not be enforceable by any unaffiliated third party, except as may be specifically provided herein. Nothing herein, express or implied, is intended to or shall confer on any third party any rights (including third party beneficiary rights), remedies, obligations or liabilities under or by reason of these Terms and Conditions or otherwise set forth in the Website, except as may be specifically provided herein. These Terms and Conditions shall not provide third parties with any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to the terms herein. No third party shall have any right, independent of any right that exists irrespective of these Terms and Conditions, to bring any suit at law or equity for any matter governed by or subject to the provisions herein.
Prohibited by Law. Company does not represent that the Materials or the Company’s Products and Services, including without limitation, any Videos, are appropriate or available for use in any particular geographic location. Users accessing the Website or using the Materials contained herein do so on their own initiative. In the event that any aspect of the Website or these Terms and Conditions is prohibited by law in User’s jurisdiction, User agrees not to Use the Website or any of the Company products or services. It is solely User’s responsibility to determine whether he is allowed by law to participate in the Website. Without limitation, the User releases Company from all liability that could arise from User’s prohibited participation in the Website, prohibited purchase of products or services or acceptance of these Terms and Conditions. Moreover, and without limiting the indemnification otherwise provided herein, User shall indemnify, defend and hold Company and all Company Parties harmless for any and all damages relating to a violation of this paragraph or any violation of the law by the User.
Without limiting the foregoing, aspects of the Materials and this Website may be subject to U.S. export controls and may not be downloaded, exported or re-exported: (a) into or to a national or resident of Cuba, Iran, North Korea, Sudan, Syria or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods (collectively, “Prohibited Countries”); or (b) to anyone who is on, or who may be acting on behalf of an entity that is on, the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List or otherwise included in General Order 3 (15 C.F.R. Part 736, Supplement 1), which prohibits exports to Mayrow General Trading, affiliated entities and persons and specified persons involved in the manufacture or sale of Improvised Explosive Devises (collectively, the “Lists of U.S. Prohibited Parties”). By Using the Materials and any other aspect of the Website, the User makes the material representation and warranty upon which he seeks Company to reasonably rely that he is not (a) located in any of the Prohibited Countries; (b) a national or resident of any of the Prohibited Countries; (c) on any of the Lists of U.S. Prohibited Parties; or (d) acting on behalf of any person or entity that is on any of the Lists of U.S. Prohibited Parties
Moreover, and in light of the international scope of the Internet, User agrees to comply with all local laws, rules and regulations, including but not limited to those applicable to online conduct and acceptable Internet content. Without limitation, User acknowledges and agrees that he shall comply with all applicable laws and regulations regarding the transmission of technical data from the United States or the country in which the User may reside. In the event that the User is located outside the United States, the User acknowledges and agrees that he, and not the Company, is responsible for ensuring that any products or services that he may purchase from Company are permitted to be imported into the country in which he is located.
Miscellaneous. The Company’s failure to enforce any term, provision or condition of these Terms and Conditions, including the breach or default thereof, by conduct, course of dealing or otherwise, in one or more instances shall not be deemed a waiver. To the extent that a provision of these Terms and Conditions is deemed unenforceable, the balance of it shall remain in full force and effect. The User specifically acknowledges that he has not accepted these Terms and Conditions on reliance of any representations or other promises of the Company, which are not specifically included herein. The User specifically stipulates that these Terms and Conditions do not constitute a contract of adhesion. The gender terms in these Terms and Conditions shall apply equally to either gender. The headings in these Terms and Conditions shall have no force and effect. User acknowledges and agrees that these Terms and Conditions and the Privacy Policy on the Website constitute the entire agreement of the Parties hereto relating to the subject matter hereof, and any prior agreements, understandings, representatives and commitments concerning such subject matter, whether oral or written, are hereby superseded and terminated in their entirety and are of no further force or effect.
By his Use of the Website, the User represents that he has had the opportunity to review these Terms and Conditions with counsel of the User’s choosing, if the User wished to do so. The User further acknowledges that he has thoroughly read these Terms and Conditions; understands that he is giving up certain legal rights that may otherwise exist; has asked any questions he desires to clarify its meaning; and believes it is in his interest to nevertheless proceed with to utilize the Website. |
