Terms of Use

 

 

This website (and any and all sub-domains) located http://www.variied.com (the “Site”) is administered by Unqommon Qolleqtive Media House, Inc. (“Company”).  For the purposes hereof, the users of the Site are referred to as “you” or “your” and Unqommon Qolleqtive Media House, Inc. is referred to as the “Company”, “we”, “us” or “our”.

 

The following are the terms of a legal agreement (the “Agreement”) between you and the Company with respect to the Site.

 

BY ACCESSING, BROWSING AND/OR USING THE SITE AND/OR ANY SOFTWARE, CONTENT, SERVICE INFORMATION OR MATERIALS OFFERED ON OR VIA THE SITE, YOU BECOME A USER OF THE SITE AND EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPT AND AGREE TO EACH OF THE TERMS AND CONDITIONS SET FORTH BELOW.  IF YOU DO NOT AGREE TO ACCEPT EACH AND ALL OF THE FOLLOWING TERMS AND CONDITIONS AS SET FORTH BELOW, PLEASE DO NOT ACCESS, BROWSE OR USE THE SITE OR ANY OF ITS SOFTWARE, SERVICES, INFORMATION, MATERIALS OR OTHERWISE.

 

For good and valuable consideration (the adequacy and sufficiency of which is acknowledged by each of the parties) of the mutual promises of the parties contained herein, the parties hereby agree as set forth below.  All Users will be subject to and bound by this Agreement.

 

Eligibility

 

You must be at least 18 years old to use the Site.  By using the Site, you represent and warrant that you are at least 18 years old.  If you are not 18 years of age or older, please do not access, use or browse the Site.

 

The Site is intended for use in the United States only.  To the extent that the Site is not legal in your jurisdiction (whether in the United States or outside), you may not use the Site.

 

You must have your computer or other device turned on, powered up, connected to the appropriate platform (such as, without limitation, the Internet or mobile network), and in a suitably ready position to allow backup to occur as required by the Site.  You agree to provide computer, hardware, devices, telephones, equipment, software, a working Internet connection, data, files and any and all other materials and items required for your access and use the Site.  Company does not represent or warrant that the Site will work with your operating system, hardware, mobile telephone or personal digital assistant, device or computer.  You are solely responsible for ensuring that you have all suitable equipment and systems to properly use the Site.  You agree to use the Site only for purposes for which it was expressly and directly intended and for no other purpose(s) whatsoever.

 

Personal Information

 

Prior to providing any personal information to us about you on the Site, please review our Privacy Policy.  You agree and warrant that any and all of the personal information provided to us is true and correct, including, but not limited to, your name, physical or electronic mailing address, phone number, fax number and other information requested.  You understand that all personal information provided by you to us will be subject to the terms and conditions of the Privacy Policy.

 

You acknowledge and agree that we may disclose information that you provide if we are required to do so by applicable law, or at the request of a third party, or if we, in our sole and absolute discretion, believe that disclosure is reasonable to (1) comply with applicable law, requests or orders from law enforcement, or any legal process (whether or not such disclosure is required by applicable law); or (2) protect or defend the rights or property of Company or a third party.

 

BY AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE REVIEWED OUR PRIVACY POLICY AND YOU HEREBY EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF OUR PRIVACY POLICY.

 

Postings and Publications

 

By posting, publishing, transmitting, distributing or uploading any information, materials or content to the Site, you automatically grant, and you represent and warrant that you have the right to grant, to us the ownership and/or license rights specified below.

 

You acknowledge and agree that we shall own and have unrestricted right to use, publish (in electronic form and/or otherwise), distribute and exploit any and all information that you post or otherwise publish, transmit, distribute or upload on the Site.  You hereby waive any and all claims against us for any alleged or actual infringements of any rights of privacy or publicity, moral rights, rights of attribution or any other intellectual property rights in connection with our use and publication of such information. In the event that our ownership of such information is determined by a court of competent jurisdiction to be invalid, you automatically grant to us a perpetual, royalty-free, non-exclusive, unrestricted, worldwide and irrevocable right and license to use, reproduce, modify, publish, translate, prepare derivative works based upon, distribute, perform or display such information, in whole or in part, in any form, media or technology known or hereafter developed for any purpose, including, but not limited to, advertising and promotional purposes and to grant and authorize sub-licenses of the foregoing.  The Company does not represent or endorse the accuracy or reliability of any information displayed, uploaded, posted on any message board, or otherwise distributed or transmitted through this Site by any user of this Site, information provider or any other third party.  The Company expressly disclaims any and all liability related to user postings, publications, transmissions, distributions and uploads relating to the Site, and you acknowledge that any reliance upon such postings, publications, transmissions, distributions and uploads shall be at your sole and absolute risk.  Moreover, the Company, in its sole and absolute discretion, reserves the right to refuse to post, and the right to remove, any information from this Site, in whole or in part, for any reason whatsoever.

 

Any comments, feedback or advice that you provide to us at, through, in connection with, or relating to this Site, shall be deemed to be non-confidential.  We and our affiliates are free to use such information for any purpose whatsoever that we deem appropriate (in our sole and absolute discretion) on an unrestricted basis, unless otherwise provided in this Agreement.

 

Your Conduct, Behavior and Duties

 

You represent, warrant and agree that you will not, directly or indirectly: (a) falsify or misrepresent any information regarding your identity or intentions with respect to any matter in connection with the Site; (b) post, publish, transmit, distribute, or upload any information or materials through the Site that the Company, in its sole and absolute discretion, deems unlawful, obscene, lewd, sexually explicit, derogatory, abusive, threatening, discriminatory with respect to race, religion or gender, or is otherwise disagreeable; (c) post, publish, transmit, distribute, or upload any information or materials through the Site that contains a virus, or any other harmful software code or programming routine that could impair operation of the Site or access of others who may, do or will access, browse or use the Site; (d) post, publish, transmit, distribute, offer or upload any information or materials through the Site that is unlawful, false, deceptive, misleading, fraudulent, or otherwise disagreeable, including without limitation, any information, communication or transmission that constitutes or supports the commission of any illegal activity or any violation of local, state, national or applicable foreign law, including without limitation any export laws and regulations; (e) post, publish, transmit, distribute, or upload any information or materials through the Site that violates any copyright, trademark or any other proprietary intellectual property rights of others, unless you have obtained express permission from such owner; (f) post, publish, transmit, distribute, or upload any information or materials through the Site that violates any legal, property, intangible, confidentiality or privacy rights of others, unless you have obtained express permission from such owner (g) post, publish, transmit, distribute, or upload through the Site any bulk e-mail solicitations, chain letters, solicitations, advertisements, pyramid schemes or any other unsolicited communication, including, without limitation, spamming those who access, browse or use the Site; (h) use, reproduce, distribute, publish or communicate any information or materials obtained from the Site for any commercial reason, unless such activity has been expressly approved by the Company; (i) impersonate our personnel (or any other person or entity) or engage in any other pre-texting; (j) attempt to (A) probe, scan or test the vulnerability of a system, server, account or network, or (B) breach security, validation or authentication measures  of any of the foregoing, (k) attempt to interfere with, disrupt or disable service or access or use of the Site to or for any user, host, server, account or network, including, without limitation, via means of overloading, “flooding,” “mailbombing,” “denial of service” attacks, or “crashing”; (l) forge any TCP/IP packet header or any part of the header information in any e-mail or posting; (m) take any action in order to obtain services to which you are not entitled; (n) attempt to utilize another party’s account name or persona without first obtaining authorization from that party; (o) attempt to circumvent or alter any method of measuring, securing, tracking or recording for the Site; and/or (p) resell, redistribute, sub-license or redirect the Site for any reason whatsoever.

 

Violations of the aforementioned representations, warranties and covenants and/or of the security of the Site may result in (without limitation) severe civil or criminal liability for the offending party.

 

You are solely responsible for, and assume all liability regarding each of the following: (i) the information and content you contribute to the Site; (ii) the information and content you post, transmit, publish, distribute, upload or otherwise make available through the Site; and (iii) your interactions with other users through the Site.  YOU ARE SOLELY AND ABSOLUTELY RESPONSIBLE AND LIABLE IN CONNECTION WITH OR RELATING TO YOUR USE, ACCESS, POSTING AND/OR PARTICIPATION ON THE SITE.

 

You agree that you will promptly report to us any violation of the Agreement by others that you are aware of (or should be aware of, based upon the circumstances).

 

You agree to comply, at your sole and own expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement.  You will immediately report to us any and all suspected or actual violations of the Agreement by others that you are aware of (or should be aware of, based upon the circumstances).

 

Additional Representations, Warranties and Covenants

 

You  hereby expressly represent, warrant, covenant and agree that: (a) you have full capacity, right and authority to enter into and perform this Agreement; (b) your use of the Site will not, directly or indirectly, infringe (in whole or in part) any intellectual property rights, including, but not limited to, patent, copyright, trademark, trade secret, mask work or other intellectual property rights, personal or privacy rights of any third party or Company; (c) your use of the Site will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Site will not in any manner, directly or indirectly, disparage, defame, discredit or harm Company or its reputation or goodwill; (e) your entry into this Agreement and/or use of the Site hereunder does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; (f) your entry into this Agreement and use of the Site is for a bona fide purpose and you are not using the Site to resell any services or software or distribute or otherwise use the services or software for an improper, illegal, immoral or unethical purpose; and (g) you will only use the Site in compliance with the highest standards and prevailing best practices regarding use of the same.

 

Proprietary Information

 

All information, materials, content, images, graphics, software, trademarks, logos, service marks on the Site (collectively the “Proprietary Information”) is and are the sole and exclusive property of the Company, unless otherwise stated, and may not be used, copied, reproduced, distributed, republished, uploaded, downloaded, displayed, posted or transmitted in any form or by any means without the prior express written consent of the Company.  The Proprietary Information, including (without limitation) all HTML code, server-side code, XML code, and compilations of meta tag key words, specification and trade name data, newsletters and publications, press materials, product and service descriptions, testimonials and all similar data and information, is exclusively owned by the Company, and is and shall, to the maximum extent allowed by law, be protected by copyright and trademark laws and international treaty provisions.  To the extent the Proprietary Information is also covered by copyright law (and you are hereby advised that much or all of the Proprietary Information is copyrighted), violators are given notice that any such violations may result in severe civil and criminal penalties.  Violators will be prosecuted to the maximum extent possible.  Users of the Site shall have no right to the Proprietary Information.  COPYING OR REPRODUCTION OF THE PROPRIETARY INFORMATION, INCLUDING, BUT NOT LIMITED TO, THE SITE AND ITS SOFTWARE OR CONTENT, TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.

 

Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any trademarks (including, without limitation, any and all of the above listed trademarks) displayed on this Site without the prior express written consent of Company or such party that may own the trademarks. The absence of a product or service name or logo anywhere in the text of this Site does not constitute a waiver of any trademark or other intellectual property rights concerning that name or logo.  All other products and brand names are trademarks and/or registered trademarks of their respective companies.

 

All products mentioned herein are used for identification purposes only and may be trademarks of their respective companies.  Prices, product descriptions and illustrations on this website are subject to change without notice.  Company is not liable for damage due to omissions or typographical errors and further informs you that inventory of some items is limited to supply on hand, and in any event, the content and materials on the Site is for general informational and communication purposes only and is presented “as-is” without any representations or warranties relating to its accuracy, reliability or usefulness.

 

The Site and its contents are intended solely for the personal, non-commercial (except as specifically and expressly agreed in writing by Company in connection with a specific feature of the Site only) use by Site users and may only be used in accordance with the terms of this Agreement. Materials displayed or performed on the Site (including, but not limited to text, blogs, graphics, articles, photographs, images, illustrations are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any such materials accessed through the Site, and shall not use, copy reproduce, modify translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any such materials or third party submissions or other proprietary rights not owned by you, (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. You shall not remove, obscure, or alter any notices or links on the Site or any of its features or tools.

 

You may not in any event, directly or indirectly, do any of the following: (a) remove any copyright, trademark, or other proprietary notices affixed to the Site; (b) sell, transfer, rent, lease, or sub-license the Site to any third party; (c) alter, change, repurpose or modify the Site; (d) make the Site available over a network or platform where it could be used by multiple computers or devices at the same time; (e) reverse engineer, disassemble, decompile or attempt to derive source code from the Site; (f) prepare derivative works, improvements or intellectual property based on the Site; (g) use the Site for any unlawful, immoral, unethical or unreasonable purpose or activity; or (h) cause or intend the Site to be used in any way or manner that may violate the intellectual property or other personal  rights (including, but not limited to, privacy rights and ownership rights) of any other person or entity.  Failure by you to duly comply with applicable laws, rules and regulations regarding copyrights, patents and other intellectual property and personal rights may subject you to both civil and criminal liability, including (without limitation) possible fines and incarceration, and Company will not be responsible for any breaches by you of this Agreement or violations by you of any applicable law, rule or regulation.  If, for any reason, you are uncertain about your rights (if any) to copy, distribute or use any material, you should contact an attorney and obtain legal advice regarding the same.

 

For the avoidance doubt, the parties acknowledge and agree that nothing in this Agreement is intended to grant any rights (including, without limitation, under or with respect to any patent, mask work right, copyright, trademark, title, interest in products or trade secret of Company) to you.  All such rights shall remain the sole and exclusive property of the Company and you shall gain no interest, right or title therein by entering into or performing this Agreement or using the Site. UNDER NO CIRCUMSTANCES WHATSOEVER MAY YOU, DIRECTLY OR INDIRECTLY, REVERSE ENGINEER, DECOMPILE, OR OTHERWISE ATTEMPT TO DECIPHER THE SERVICE, SOFTWARE OR ANY OTHER ASPECT OF THE COMPANY’S TECHNOLOGY, INTELLECTUAL PROPERTY, PRODUCTS, SERVICES OR PROPRIETARY INFORMATION.

 

Notification of Copyright Infringement

 

Company will, in appropriate circumstances, terminate the access and use of the Site of users who infringe the intellectual property rights of others.  If any individual or entity believes that its/his work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Site or on sites linked to/from this Site, please provide Company’s Copyright Agent a Notice containing the following elements:

 

1. a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;

 

2. a detailed description of the copyrighted work or works that the owner (or its/his agent) claims have been infringed and identification of what material in such work(s) is claimed to be infringing and which the owner (or its/his agent) has request to be removed or access to which is to be disabled;

 

3. a reasonable description of where the material that the owner (or its/his agent) claims is infringing is located on the Company web site;

 

4. information sufficient to permit Company to contact the owner (or its/his agent), such as a physical address, telephone number, and e-mail address;

 

5. a statement by the owner (or its/his agent) that it/he has a good faith belief that the use of the material identified in the Notice in the manner complained of is not authorized by the copyright owner, its/his agent, or the law;

 

6. a statement by the owner (or its/his agent) that the information in the Notice is accurate and, under penalty of perjury, that the provider of the Notice is in fact the copyright owner or authorized to act on the copyright owner’s behalf.

 

The Company Copyright Agent for Notice of claims of copyright infringement can be reached through the “Contact Information” section below.

 

THE COPYRIGHT AGENT SHOULD BE CONTACTED ONLY IF ANY INDIVIDUAL OR ENTITY BELIEVES THAT ITS/HIS WORK HAS BEEN USED OR COPIED IN A WAY THAT CONSTITUTES COPYRIGHT INFRINGEMENT AND SUCH INFRINGEMENT IS OCCURRING ON THE SITE OR ON SITES LINKED TO/FROM THE SITE.  ALL OTHER INQUIRIES DIRECTED TO THE COPYRIGHT AGENT WILL NOT BE RESPONDED TO.

 

Supervision

 

The Company reserves the right, but has no obligation, to supervise all material, content and information on the Site.  The Company also reserves the right (but has no obligation), in its sole and absolute discretion, to amend, edit, remove or otherwise block any information, material or content on the Site.  However, to the maximum extent allowed by law, the Company does not assume responsibility for verifying the content, materials and information on the Site and is not responsible for any damages, losses, expenses or other injuries incurred by any user as a result of, or in connection with, any content, material and information posted, published, transmitted, distributed or uploaded on the Site.  Users of the Site agree to indemnify and hold harmless the Company from any damages, losses, expenses or other injuries incurred by any user as a result of, or in connection with, using the Site.

 

Access

 

We may alter, suspend or discontinue the Site or your access to use the Site at any time for any reason without notice or liability to you or to any third party.  The Site may become unavailable due to maintenance or malfunction of computer equipment or for other reasons and may result in damages to your systems or operations.  You shall be solely responsible for ensuring that any information, materials or content obtained from the Site does not contain any virus or other computer software code or subroutine designed to disable, erase, impair or otherwise damage your systems, software or data.  Furthermore, you expressly agree to indemnify and hold harmless the Company from any damages, losses, expenses or other injuries incurred by you as a result of, or in connection with, any system errors, malfunctions or other interruptions or temporary or permanent discontinuation of the Site.

 

The Company also reserves the right, in its sole and absolute discretion, to modify, suspend or terminate any aspect of the Site at any time, with or without notice to any past, current or potential users of the Site.

 

As a condition to use of the Site and/or certain portions of the Site, you may be required to register with Company and select a password and user name.  In such event, you shall provide Company with accurate, complete, and updated registration information at all times.  Failure by you to do so shall constitute a breach of this Agreement, which may result in immediate termination (without notice) of your account and registration status.  Furthermore, the Company reserves the sole and absolute right to refuse registration of, or cancel any user’s registration and account in the sole and absolute discretion of Company.  You shall be exclusively responsible for maintaining the confidentiality of your password, and you shall be responsible and liable for any and all uses of your account and password (whether such use is by your or another person or entity).

 

Site Changes

 

The Company reserves the right, in its sole and absolute discretion, to modify, suspend or terminate any aspect of the Site at any time, with or without notice to any past, current or potential users of the Site.

 

Links to Third Parties

 

The Site may contain links and pointers to Internet sites maintained by third parties.  The Company does not operate or control in any respect any information, products or services on such third-party sites.  Third-party links and pointers are included solely for the convenience of users of the Site, and do not constitute any endorsement or verification by the Company.  You expressly agree to assume sole responsibility for use of third party links and pointers.

 

Please recognize that we do not control these third party websites and we make no representations or warranties whatsoever about any website.  This Agreement does not apply to the use of any of these other websites and you should consult the applicable terms of use of each third party website before using such third party website.

 

The Company expressly disclaims any and all liability and responsibility for the content of any websites other than the Site.  Furthermore, you are directed to take any and all precautions to ensure that third-party websites are free of such items as viruses, worms, trojan horses and other items of a destructive nature.

 

Moreover, if you visit or otherwise arrive at third-party sites via such links from our Site, and thereafter you complete sales, transactions or other activities, we have no responsibility or liability whatsoever with any such sales, transactions or other activities.  All such sales, transactions or other activities are independent of us, and occur only between you and such third-party site(s).

 

Links to Us

 

Unless another party has entered into a written agreement with the Company, a party may only provide a hypertext link to the Site on another web site, if such hyperlink complies with all of the following conditions: 1) the link, when activated by a user of the Site, must display the Site full-screen and not with a “frame” on the linking web site; and 2) the appearance, position and other aspects of the link must not be such as to damage or dilute the goodwill associated with the name and trademarks of the Company and the Site and must not create the false appearance that the Company or the Site is associated with or endorses or sponsors the linking web site.  The Company may selectively revoke its consent to any link at any time in the Company’s sole and absolute discretion.

 

Recordkeeping

 

The Company does not guarantee the preservation or maintenance of any records relating to its Site and you are encouraged to keep individual records and an accounting of all activity conducted through the Site.

 

Communication

 

All communication with you will occur at the contact information provided by you to us.

 

Disclaimer of Warranties

 

TO THE FULLEST AND MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW(S), THE FOLLOWING DISCLAIMER SHALL APPLY:  THE SITE AND ALL INFORMATION, CONTENT AND MATERIALS THEREON ARE DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND.  THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  SPECIFICALLY, BUT WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT: (1) THE INFORMATION, MATERIALS OR CONTENT ON THE SITE IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (3) DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  YOU HEREBY ACKNOWLEDGE THAT USE OF THE SITE IS AT YOUR SOLE AND ABSOLUTE RISK.

 

Opinions, comments, advice, statements, offers, or other materials, information or content made available through the Site, but not directly by us, are those of their respective authors, and should not necessarily be relied upon.  Such authors are solely responsible for such content. COMPANY DOES NOT UNDER ANY CIRCUMSTANCES WHATSOEVER: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE SITE BY ANY THIRD PARTY, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, COMMENT, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN COMPANY (AND EVEN THEN, ONLY SUBJECT TO THE LIMITATIONS OF LIABILITY AND OTHER TERMS SPECIFIED HEREIN).  UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT OR MATERIALS POSTED OR PUBLISHED OR UPLOADED ON THE SITE, OR TRANSMITTED OR DISTRIBUTED TO, OR BY, ANY OTHER USERS OR THIRD PARTIES.

 

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS REPRESENTATIVES WILL UNDER ANY CIRCUMSTANCES CREATE A WARRANTY, UNLESS SPECIFICALLY SET FORTH IN AN EXPRESS WRITING SIGNED BY AN OFFICER OR COMPANY.  SHOULD THE SOFTWARE OR SERVICE PROVE DEFECTIVE OR ERRONEOUS, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICE, REPAIR, OR CORRECTION AND WE WILL HAVE ABSOLUTELY NO LIABILITY WITH RESPECT THERETO.

 

You acknowledge and agree that the Site may fail at any time, may not operate error-free, may be interrupted by power failure or otherwise, may be down for maintenance or troubleshooting, and may be subject to delays, disruptions, denial of service attacks, malfunction or other problems.  Further, you acknowledge and agree that the Site may fail to meet your needs.  You agree that you will maintain a primary electronic file of your data and materials and will not use the Site as a substitute therefor.

 

Limitation of Liability

 

This entire section entitled “Limitation of Liability” shall apply notwithstanding anything to the contrary in this Agreement, and is an essential element and section of this Agreement, and in the absence of such limitations of liability, the economic terms of this Agreement would have been substantially different than provided herein and/or the parties would not have entered into this Agreement.

 

The Company shall have no liability whatsoever to any user for any damages, losses and causes of action (whether in contract or in tort or otherwise) in connection with the access, browsing or usage of the Site or any of the information, content or materials contained thereon.  No third-party beneficiaries are created by virtue of the Agreement and the Company expressly disclaims any liability under any circumstances for any damages, losses and causes of action (whether in contract or in tort or otherwise) to any third parties in connection with the access, browsing or usage of the Site or any of the information, content or materials contained thereon.

 

IN NO EVENT WILL COMPANY BE LIABLE (EVEN IF COMPANY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, ANY OF THE FOLLOWING: (I) ANY VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS, USAGE OR BROWSING OF THE SITE; (II) THE USE OR INABILITY TO USE THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES; (III) THE DOWNLOADING OF ANY MATERIALS, DATA, CONTENT, INFORMATION, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE SITE; (IV) ANY OF THE CONTENT, INFORMATION OR MATERIALS CONTAINED ON OR THROUGH THE SITE; AND/OR (V) YOUR RELATIONSHIP WITH THE COMPANY.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH OR RELATING TO THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THE SITE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO ATTEMPT TO DEFRAUD OR HARM YOU.

 

THE COMPANY SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY INFORMATION PUBLISHED ON LINKED WEB SITES, CONTAINED IN ANY USER SUBMISSIONS PUBLISHED ON THE SITE, OR PROVIDED BY THIRD PARTIES.  NEITHER THE COMPANY NOR ITS THIRD-PARTY CONTENT PROVIDERS SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR FOR LOST REVENUES OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND REGARDLESS OF THE THEORY OF LIABILITY.

 

If applicable law does not allow the limitation or exclusion of liability or incidental or consequential damages to the extent provided above, the above limitation or exclusion will not apply to you, but only to the extent that it is disallowed pursuant to applicable law.  In no event shall our total liability to you for all damages, losses, and causes of action (whether in contract, tort (including but not limited to negligence) or otherwise) exceed the amount paid by you, if any for accessing the Site.  UNDER ABSOLUTELY NO CIRCUMSTANCES SHALL OUR AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH OR RELATED TO THIS AGREEMENT OR THE USE OR NON-USE OF THE SITE, EXCEED THE AMOUNT PAID BY YOU TO ACCESS THE SITE, OR, IF YOU HAVE NOT PAID TO USE THE SITE, THE AMOUNT OF $25.00 (TWENTY-FIVE UNITED STATES DOLLARS) OR ITS EQUIVALENT.

 

Indemnification

 

You will, at your own expense, defend, indemnify and hold harmless the Company, its parents, subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, agents, representatives, contractors, employees and customers (each, an “Indemnitiee”, and collectively, “Indemnitees”) from and against any and all loss, cost, expense, damage, claim, demand, or liability (a “Claim), including (without limitation) reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by, or demanded of, an Indemnitee, that, directly or indirectly, arises out of, results from or occurs in connection with: (a) your use of or inability to use the Site; (b) any user postings, publications, uploads, transmissions or distributions made by you, (c) your violation of any of the terms of this Agreement or your violation of any rights of a third party; (d) your violation of any applicable laws, rules or regulations; (e) your negligence, bad faith or willful misconduct; (f) your breach of any of the provisions of this Agreement or the Privacy Policy; or (g) (i) infringement by you of any intellectual property, proprietary or other rights of any third party, including (without limitation) any patent, copyright or trademark, (ii) unlawful disclosure, use, or misappropriation of a trade secret by you, or (iii) violation of any other third-party intellectual property right, or other property or personal right of any person or entity; or (c) your use of (or inability to use) the Site or any Company service, software or website, in any manner whatsoever.  We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses, and promptly reimburse our reasonable costs and expenses (including, without limitation, reasonable attorney and professional fees) in connection with, relating to or arising from our defense in such matter.  No settlement, compromise or adjudication of any Claim to which indemnity applies hereunder, shall be effective or permitted without the express and prior written consent of the Company.

 

Changes or Specialized Modifications

 

The Company may, in its sole and absolute discretion, modify or change any aspect of the Agreement at any time, in whole or in part and with or without prior notice to you.  Please consult the end of this Agreement to determine when the Agreement was last revised.  You agree to periodically review this Agreement to ensure that you are in compliance with any ongoing changes or modifications that are made to the Agreement.  Your continued use of the Site after any such modifications or changes are posted will constitute your acceptance of such any modifications to the Agreement.  The Company reserves the right to modify the Agreement as it applies to any specific user, provided that any and all such special modifications must be in writing between the Company and the applicable user.  Any specialized modifications so made shall apply exclusively and only the user that is a party to such written agreement.

 

Term and Termination

 

This Agreement becomes effective and constitutes a binding legal agreement between you and us upon your acceptance of the Agreement by accessing, browsing and/or using the Site and will remain in effect in perpetuity unless earlier terminated hereunder.

 

The Company may, at any time, in its sole and absolute discretion, terminate this Agreement with you and your access to the Site with or without notice to you and for any reason or no reason, provided that this Agreement will automatically terminate, at the sole option of the Company, without any further action being required (such as a notice) upon your breach of any of the terms of this Agreement.  Users may also terminate this Agreement and discontinue their use of the Site at any time by notifying the Company of the same.

 

Unless otherwise explicitly stated, all of your obligations, duties and responsibilities in the Agreement will survive termination of your use of the Site and/or the Agreement.

 

General

 

If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible and the remainder of the Agreement shall continue in full force and effect.

 

This Agreement shall be governed by and construed in accordance with the laws of the State in which Company maintains its principal place of business, without regard to the conflicts of law provisions thereof.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to the Agreement.  You expressly agree that any controversy or claim arising out of, relating to, or in connection with, this Agreement, or the alleged breach thereof, or relating to our activities or services or to us otherwise under this Agreement, shall be settled by binding arbitration in the State in which Company maintains its principal place of business, in accordance with the applicable rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction.  Notwithstanding the foregoing, the agreement to arbitration set forth above does not limit the ability of the parties to apply for equitable relief (including, but not limited to, an injunction) to a court of competent jurisdiction, including (but not limited to) enforcing the arbitration provisions hereof.  Without limiting the foregoing, you acknowledge that violations or breaches of this Agreement by you may cause the Company irreparable harm, and the parties agree that the Company may petition any court of competent jurisdiction worldwide for equitable relief (including, but not limited to, injunctive relief), without the need to post any bond, in addition to all other remedies available at law or equity.  Remedies under this Agreement are cumulative and may be enforced singularly or together at any time otherwise permitted.  If the Company is the prevailing party in any controversy or dispute arising with you hereunder, the Company shall be entitled to recovery from you its reasonable attorney’s fees and costs from the controversy or dispute.

 

If you are dissatisfied for any reason with the Site, or the terms and conditions of this Agreement or the Privacy Policy, your sole and exclusive remedy (whether at law or equity) shall be to discontinue your use of the Site and terminate this Agreement as described herein.

 

You hereby expressly agree that during the term of this Agreement and for a period of one (1) year thereafter, you will not, directly or indirectly, attempt to or actually circumvent this Agreement or its purpose or intent.

 

Company will not be liable for any failure to perform acts due to causes beyond its control (including, without limitation, electrical outage, Internet Service Provider or wireless network or other service provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war or Acts of God).  If any such circumstances occur, Company shall use commercially reasonable efforts to attempt to provide reasonable notice to you of the same.  The time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.

 

This Agreement contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof.  Except as provided in the paragraph titled “Changes or Specialized Modifications” above, any modification, addendum, or amendment to this Agreement will not be effective unless the same is in writing and signed by a duly authorized officer of Company.  This Agreement may not be modified, supplemented or amended by an electronic signature (or electronic correspondence) from Company.

 

Failure by Company to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision. A waiver by Company of any right, remedy or provision hereof shall only be effective if it is in an express writing that is signed by a duly authorized officer of Company.

 

Regardless of any statute or law to the contrary, any claim or cause of action that you have that arises out of or is related to the use of the Site or this Agreement must be filed by you within one (1) year after such claim or cause of action arose or be forever barred.

 

Unless otherwise stated herein, any notices hereunder to Company shall be in writing and be delivered by hand or mail (as specified below) to the persons and at the addresses as set forth below and shall be deemed given upon (i) delivery if by hand, (ii) five (5) business days after mailing if by certified mail, return receipt requested, or (iii) confirmation of delivery in the case of overnight or express mail.  Notices to you hereunder may be provided by electronic mail to the electronic mail address provided by you to Company (and such notice shall be deemed given immediately upon transmission thereof by Company).  Either party may change its address for receipt of notice to the other party by delivering notice of such change pursuant to this paragraph.

 

Your written or electronic signature is not necessary to manifest your assent or acceptance of this Agreement, and your use of the Site (as discussed herein) shall in and of itself constitute such assent and acceptance.  This Agreement may be accepted and executed in the manner provided herein and such acceptance as provided herein shall constitute a valid and legally binding agreement between the parties.

 

Neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred (in whole or in part) by you without the prior express written consent of Company.  Any attempted assignment by you in violation of this paragraph shall be null and void.  This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns.  Company may freely assign or transfer (in whole or in part) this Agreement with or without notice thereof to you.

 

The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement.  This Agreement shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel. Uses of the words “and”, “or” and “and/or” herein, when used with respect to Site, shall be deemed to include “and” as well as “or”.

 

Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties.  Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party.  Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party.  The provisions of this Agreement are intended solely for the benefit of Company and you, and shall create no rights or obligations enforceable by any other party.

 

Contact Us

 

If you have any questions, thoughts our comments with respect to this Agreement, please contact us at: general [at] variied.com or use our contact form.

 

This Agreement was last revised on Jan. 4, 2015

 

Copyright © 2015 Unqommon Qolleqtive Media House, Inc. All Rights Reserved.

 

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