Terms and Conditions
THESE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URL: WWW.CREATE-LEARNL.COM AS WELL AS ALL ASSOCIATED SITES LINKED TO WWW.CREATE-LEARNL.COM BY THE COMPANY, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE "Site") AND THE SERVICES MADE AVAILABLE ON OR THROUGH THIS SITE (COLLECTIVELY, THE "Services"). BY VISITING THE WEBSITES OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE WEBSITE OR SERVICES. ACCESS TO THE WEBSITE AND USE OF COMPANY'S SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
This Agreement applies to schools, school districts, and related entities and organizations, including but not limited to administrators, instructors, and teachers who access or use the Services on their behalf (each an "Educational Institution"), as well as all non- Educational Institution visitors, users, and others, including students, their parents and legal guardians, who use the Services (such individuals and Educational Institution, collectively, "you").
ACCESS TO THE SERVICES.
The create-learn.com website and domain name and any other linked pages, features, content, or application services (including without limitation any mobile application services) offered from time to time by Company in connection therewith (collectively, the "Website") are owned and operated by Company. Subject to the terms and conditions of this Agreement, Company may offer to provide certain services, as described more fully on the Website, and that have been selected by you (together with the Website, the "Services"), solely for your own use, and not for the use or benefit of any third party. The term "Services" includes, without limitation, use of the Website, any service Company performs for you and the Content (as defined below) offered by Company on the Website. Company may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or Content. Company may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability.
Company reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Website, or by sending you a notice. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
COPPA (Children's Online Privacy and Protection Act) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. Therefore, we only collect personal information through the Services from a child under 13 where that student's school, district, and/or teacher has agreed (via the terms described in the following paragraph) to obtain parental consent for that child to use the Services and disclose personal information to us or where the parent or legal guardian of a child has signed the child up to use the Services. If you are a student under 13, please do not send any personal information about yourself to us if your school, district, and/or teacher has not obtained this prior consent from your parent or guardian or if your parent or guardian has not signed you up to use the Service, and please do not send any personal information other than what we request from you in connection with the Services. If we learn we have collected personal information from a student under 13 without parental consent being obtained by his or her parent, guardian, school, district, and/or teacher, or if we learn a student under 13 has provided us personal information beyond what we request from him or her, we will delete that information as quickly as possible. If you believe that a student under 13 may have provided us personal information in violation of this paragraph, please contact us at firstname.lastname@example.org
Verification of Identity
You acknowledge that we may make any inquiries, either directly or through third parties, that we deem necessary to validate any user's registration information, including without limitation engaging third parties to provide identity or other verification services with regard to any School (including teacher's administrators or other personnel thereof). The Company reserves all rights to take legal action against anyone who misrepresents personal information or is otherwise untruthful about their identity in connection with their use of the Services. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT THE COMPANY CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION SUBMITTED BY ANY USER, OR THE IDENTITY OF ANY USER WHO CHOOSES TO USE THE SERVICES.
You represent and warrant that you are of legal age to form a binding contract (or if not, you've received your parent's or guardian's permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf, as we described earlier, and also to agree to these Terms and their own behalf). If you're agreeing to these Terms on behalf of an organization or entity (for example, if you're an administrator agreeing to these Terms on behalf of your district), you represent and warrant that you are authorized to agree to these Terms on that organization or entity's behalf and bind them to these Terms. You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
The Services and its contents are intended solely for the personal, non-commercial use of Services by users and may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the Services (including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the "Content," and which includes User Submissions (as defined below) are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, 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 Content 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.
The Services are protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.
You may download or copy the Content (and other items displayed on the Services for download) for personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content other than personal, noncommercial use is expressly prohibited without prior written permission from Company or from the copyright holder identified in such Content's copyright notice.
For all User Submissions, you hereby grant Company a license to translate, modify (for technical purposes, for example making sure your content is viewable on your iPhone as well as your computer) and reproduce such User Submission, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal Company account, in a manner that is not viewable by any other user except you (a "Personal User Submission"), you grant Company the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of displaying that Personal User Submission to you and providing you the Services necessary to do so.
If you share a User Submission only within a Limited Access Group, or otherwise in a manner that only certain specified users can view (each, a "Limited Access User Submission"), then you grant Company the license above, as well as a license to display, perform, and distribute your Limited Access User Submission for the purpose of displaying that Limited Access User Submission to other members of that Limited Access Group (or to such specified users, as applicable) and providing you the Services necessary to do so. Also, you grant the other members of that Limited Access Group (or such specified users, as applicable) a license to access that Limited Access User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services. For example, if you share a project in your Limited Access Group, you grant the other members of the Limited Access Group the rights necessary to view that project and to create derivative works by adding to and modifying it.
If you share a User Submission in a public "community" on the Services or in a manner that more than just you or your Limited Access Group can view (a "Public User Submission"), then you grant Company the license above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of displaying that Public User Submission to all Company users and providing you the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with Company and the Services, provided that Company will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Services. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services. For example, if you share a project in a public "community", you grant the other members of the "community" the rights necessary to view that project and to create derivative works by adding to and modifying it.
Any user and Company may use, modify, reproduce, display, perform, distribute or create derivative works of a Public User Submission or a Limited Access User Submission (for which they have permission to access), provided that such user or Company must provide attribution to the original author(s).
You agree that the licenses you grant are perpetual, royalty-free, irrevocable, sublicenseable, transferable and worldwide. Finally, you understand and agree that Company, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media.
You understand that all information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such content originated and that Company will not be liable for any errors or omissions in any content. You understand that Company cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, Company cannot guarantee the authenticity of any data which users or merchants may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
Under no circumstances will Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services.
You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds, lessons, educational materials and other content that you submit, upload, post, send or otherwise make available on or through the Site and Services. You may not upload, post, send or otherwise make available on this Site or through the Services, any material protected by copyright, trademark or any other intellectual property or other proprietary right without the express permission of the owner of such copyright, trademark or other intellectual property or other proprietary right, and the burden of determining whether any material is protected by any such right is on you. You agree to pay for all royalties, fees, damages and any other monies owing to any person and/or entity by reason of any Submissions posted by you to or through this Site and the Services. Without limiting the foregoing, you shall be solely liable for any and all claims, damage and loss resulting from any infringement and/or misappropriation of copyrights, trademarks and/or other proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each User Submission you make, including its legality, reliability and appropriateness. Without limiting the foregoing, you are only permitted to make Submissions that are consistent with the educational purposes for which the Company makes the Site and Services available.
When you provide Submissions you agree that those Submissions shall not be in violation of the "Unauthorized Activities" paragraph below. THOSE PROHIBITIONS DO NOT REQUIRE THE COMPANY TO MONITOR, POLICE OR REMOVE ANY SUBMISSIONS OR OTHER INFORMATION SUBMITTED BY YOU OR ANY OTHER USER.
FEES AND PAYMENT..
You shall pay all applicable fees, as described on the Website and/or your account settings in connection with the Services selected by you. You shall be responsible for all taxes associated with your use of such Services, including, without limitation any federal, state, local or foreign taxes or any sales or use taxes. Company reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Website. Your use of the Services following such notification constitutes your acceptance of any new or increased charges. Any fees paid hereunder are non-refundable.
We may suspend or terminate Your account and/or access to our Services and the Site if your payment is late and/or your offered payment method (e.g., credit card) cannot be processed. By providing a payment method, you expressly authorize us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on your utilized services.We understand that you might cancel your account, but please know that we will not provide any refund(s) and you will be responsible for paying any balance due on the account for the entire term to which you agreed. To make things less complicated, you agree that we may charge any unpaid fees to your provided payment method and/or send you a bill for such unpaid fees. To the extent you have paid any fees to the Company prior to termination of your account, you will not be entitled to any refund of such fees.
By using the Site and Services provided on or through the Site, you hereby consent to receive electronic communications from the Company. These electronic communications may include notices about applicable fees, taxes and other charges, transactional information and other information concerning or related to the Site and Services. These electronic communications are part of your relationship with the Company. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Links to Third Party Sites.
The Company may make message boards, discussion boards, blogs, messaging and other interactive features (collectively, "Interactive Features") available to users of the Services to promote and encourage open, honest and respectful education-related communication between users. All Submissions, whether publicly or privately posted or transmitted through the Interactive Features shall be the sole responsibility of the posting user and the posting user shall be fully liable for his or her submissions. You acknowledge and agree that the Company does not control the Submissions posted or transmitted through any Interactive Features, and does not guarantee the accuracy, integrity, quality or suitability of such posted or transmitted Submissions. The Company does not pre-screen Submissions posted or transmitted through any Interactive Features. The Company may, but is not obligated to, monitor the posting activities of users and may in its sole discretion, edit or remove any Submission and/or restrict a user's ability to post or transmit Submissions through the Interactive Features. BY USING ANY INTERACTIVE FEATURE, YOU UNDERSTAND THAT YOU MAY BE EXPOSED TO SUBMISSIONS THAT ARE OFFENSIVE, INDECENT OR OBJECTIONABLE, AND YOU USE SUCH INTERACTIVE FEATURES SOLELY AT YOUR OWN RISK AND THE COMPANY HAS NO RESPONSIBILITY OR LIABILITY TO YOU IN CONNECTION THEREWITH.
You should exercise common sense and appropriate caution before posting or transmitting any of your own personally identifiable information or other confidential information on or through any Interactive Feature, as such information will be viewable by any user accessing or otherwise using such Interactive Features, and the Company has no responsibility or liability to you or any other person in respect of your decision to make your personally identifiable information or other confidential information publicly available through the Services. To the extent permitted by applicable law: (i) the Company may in its sole discretion record any or all communications between users; and (ii) each Student acknowledges and agrees that his or her Teacher(s) may be able to view such Student's communications (both sent and received) without any prior notice to Student.
When using this Site and/or the Services, you agree not to: • Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as the rights of privacy and publicity) of others. • Use racially, ethnically, or otherwise offensive language. • Discuss or incite illegal activity. • Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated). • Post anything that exploits children or minors or that depicts cruelty to animals. • Post any materials that violate the copyright rights, trademark rights or other intellectual property rights of any person without the express permission from the owner. • Disseminate any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of such solicitations. • Use any robot, spider, scraper or other automated means to access the Site or Services. • Take any action that imposes an unreasonable or disproportionately large load on our or our third party service providers' infrastructure. • Alter the opinions, comments, messages or other Submissions posted, sent or otherwise communicated by others on this Site or through the Services. • Post, send or otherwise communicate any Submission or other information contrary to our public image, goodwill or reputation, as determined by us in our sole discretion. This list of prohibitions provides examples and is not complete or exclusive. The Company reserves the right to: (i) terminate access to your account, your ability to post to this Site (or use the Services); and (ii) refuse, modify, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to this Site and/or the Services or to any other user of this Site and/or Services. In addition to violating these Terms, any unauthorized use of any Materials may violate applicable laws, rules and/or regulations. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services.
You, not Company, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to Company and to grant Company the rights to use such information in connection with the Services and as otherwise provided herein.
THE COMPANY MAY REPORT TO LAW ENFORCEMENT AUTHORITIES, OR OTHER THIRD PARTIES, ANY ACTIONS THAT MAY BE ILLEGAL, AND ANY REPORTS IT RECEIVES OF SUCH CONDUCT. WHEN LEGALLY REQUIRED OR AT THE COMPANY'S DISCRETION, THE COMPANY WILL COOPERATE WITH LAW ENFORCEMENT AUTHORITIES IN ANY INVESTIGATION OF ALLEGED ILLEGAL ACTIVITY IN CONNECTION WITH THE SITE, SERVICES OR ON THE INTERNET, WITH OR WITHOUT NOTICE TO YOU.
You hereby agree to indemnify, defend and hold harmless, the Company, its parents, affiliates, subsidiaries, suppliers, licensors and business partners, and its and their respective officers, directors, employees and agents (collectively, the "Company Parties") from and against any and all costs, damages, liabilities, losses and expenses (including without limitation, attorneys' fees and costs of defense) any Company Party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of this Site and/or the Services, or the use of this Site and/or the Services, by any person using your user name (or if you are a Student, your avatar) and/or Password (including without limitation, your participation in the Interactive Features and your Submissions) violates any applicable law, rule or regulation, or the copyrights, trademark rights or other rights of any third party, including without limitation, the intellectual property, privacy and/or publicity rights of any third party.
Disclaimer of Warranties.
Your use of this Site and/or the Services is entirely at your own risk. The Materials have not been verified or authenticated in whole or in part by the Company, and they may include inaccuracies or typographical or other errors. You release Company from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any content contained in or accessed through the Services, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. The Company has no liability for any errors or omissions in the Materials, whether provided by the Company, our licensors or suppliers or other users. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY AND THE OTHER COMPANY PARTIES DO NOT REPRESENT, WARRANT, COVENANT OR GUARANTEE THAT USING THE SITE AND/OR SERVICES WILL RESULT IN ANY IMPROVED PERFORMANCE BY ANY STUDENT OR WILL RESULT IN ANY PARTICULAR STUDENT ADVANCEMENT OR ATTAINMENT. THE COMPANY, FOR ITSELF AND THE OTHER COMPANY PARTIES, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, COVENANTS OR GUARANTEES IN CONNECTION WITH THIS SITE OR THE SERVICES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR CONTENT CONTAINED OR PRESENTED ON OR THROUGH THIS SITE AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION, THE MATERIALS AND SUBMISSIONS. THIS SITE, THE SERVICES, AND MATERIALS, AND ANY INFORMATION OR CONTENT CONTAINED OR PRESENTED BY THE COMPANY ARE PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO WARRANTY OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THE COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER. Some jurisdictions do not allow certain disclaimers and/or limitations of warranties and similar protections, so the foregoing may not apply to you; in such case, the Company's warranties shall be limited to the greatest extent permitted under the applicable laws of such jurisdiction.
Limitation of Liability.
IN NO EVENT SHALL THE COMPANY OR THE OTHER COMPANY PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE, SERVICES AND/OR MATERIALS, INCLUDING WITHOUT LIMITATION, LIABILITY ASSOCIATED WITH ANY VIRUSES WHICH MAY INFECT YOUR COMPUTER EQUIPMENT OR DATA, EVEN IF THE COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. IN ADDITION, IN NO EVENT SHALL THE COMPANY'S OR THE OTHER COMPANY PARTIES' TOTAL CUMULATIVE LIABILITY ARISING UNDER OR IN CONNECTION WITH THESE TERMS, EXCEED THE GREATER OF: (I) ONE HUNDRED US DOLLARS (US$100); OR (II) THE TOTAL AMOUNT OF ANY FEES YOU HAVE PAID THE COMPANY FOR THE SERVICES DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE RELEVANT COMPANY PARTY'S LIABILITY. Some jurisdictions do not allow certain limitations of liability, so the foregoing may not apply to you; in such case, the Company Parties' liability will be limited to the greatest extent permitted under the applicable laws of such jurisdiction.
REGISTRATION AND SECURITY.
As a condition to using some aspects of the Services, you may be required to register with Company and select a password and user name ("Company User ID"). If you are accessing the Services through a third party site or service (such as "Facebook Connect"), Company may require that your Company User ID be the same as your user name for such third party site or service. You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. In certain situations, your Company User ID may be selected for you by your school or district; the same rules apply to them when they select a Company User ID for you. You may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; or (ii) use as a Company User ID a name subject to any rights of a person other than you without appropriate authorization. Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password. If you access the Service through a third party site or service, you will provide your third party account credentials to Company, and you are consenting to have the information in those accounts transmitted into your Company account, and you agree that you shall only use accounts owned by you, and not by any other person or entity.
INTERACTION WITH THIRD PARTIES.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users or third parties, you hereby release Company, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says:"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services at any time. Company may terminate or suspend your access to the Services or your membership at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your membership. Company may also terminate or suspend any and all Services and access to the Website immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your right to use the Services, access the Website, and any Content will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company's prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede. Except as expressly set forth in Section "APPLE DEVICE AND APPLICATION TERMS" below, you and Company agree there are no third party beneficiaries intended under this Agreement.
ARBITRATION; GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief at any time. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.
COPYRIGHT DISPUTE POLICY.
Company has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Company's Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is listed at the end of this Section. It is Company's policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
- Procedure for Reporting Copyright Infringements:
- If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
- Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
- It is Company's policy:
- to remove or disable access to the infringing material;
- to notify the content provider, member or user that it has removed or disabled access to the material; and
- that repeat offenders will have the infringing material removed from the system and that Company will terminate such content provider's, member's or user's access to the Services.
- Procedure to Supply a Counter-Notice to the Designated Agent:
- If the content provider, member or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider, member, or user, must send a counter-notice containing the following information to the Designated Agent listed below:
- A physical or electronic signature of the content provider, member or user;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- Content provider's, member's or user's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's, member's or user's address is located, or, if the content provider's, member's or user's address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
- If a counter-notice is received by the Designated Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company's discretion.
- Please contact Company's Designated Agent to Receive Notification of Claimed Infringement at the following address: Email us at email@example.com.
Effective: September, 2017