TERMS AND CONDITIONS

 

Welcome to iamtalenteddamit.com (“Site”), owned exclusively by Soul-ution Entertainment, LLC (“Company”).    Site is a social network for a large variety of professionals, which allows its members to share their work with other professionals with similar background and expertise.  Site is meant for you (“Your” or “You”) to upload work relevant to Your profession, and to celebrate the work and professional accomplishments of others.

 

These Terms and Conditions manage Your use, access and/or membership to Site and all related sites (“Site”).  By accessing, using or becoming a member of the Site, You agree to be bound by these Terms and Conditions, our Privacy Policy and any other policy linked or incorporated into these Terms and Conditions (“Terms”).

 

Before utilizing the Site, please read these Terms carefully.  As stated above, the Terms govern Your use of the Site and any services provided to You.  You may only use and access this Site in accordance with these Terms.  If You do not agree to be bound by these Terms, You may NOT enter this Site and must exit this Site immediately.

 

General Disclaimer.  Nothing contained on the Site shall be construed as a representation to be reasonably relied upon.  In no event shall anything on the Site be construed either to create a duty of care or to constitute a representation by Company of any sort to be relied upon by You in any manner whatsoever.  Company takes no responsibility for information sent to it intercepted by third-parties.    You assume the risk of sending communications through the Site, including but not limited to contacting Company by email, phone, facsimile, through the Site’s contact pages or otherwise.

 

As further set forth herein, Company takes no responsibility for the information contained on any website to which this one may be linked, as the same is completely independent of the Site.

 

Company is not responsible for the conduct of business utilizing information from its Site.  You shall use caution and be responsible for the inherent risks in dealing with other users or third-parties, whose identities have not been verified, may be under age, may be acting under false pretenses or attempting to defraud others.  User agrees to accept and assume such risks and acknowledges that Company is not responsible for the acts or omissions of other users or third-parties on the Site.

MEMBERSHIP OF SITE

Membership. You may elect to create an account with the Site, whereby You become a member (“Member”).  As a Member, you will be able to create a portfolio (“Portfolio”) on the Site, which will allow You to share Your work.  It will also allow You to interact with other Members of the Site.

Membership Account.  To become a Member, You may have to provide the Company with certain information including, without limitation, Your name, a username, Your email and a password (collectively, the “Membership Account”).  You agree to provide to the best of your ability, complete, accurate and up-to-date information about yourself during the creation of the Membership Account.  You accept all risks associated with providing false information.  In choosing a username and password, You warrant and agree that You will not choose a name which may mislead others to believe that You are someone else, or otherwise utilize a name which may be in violation of the rights of a third party. You will not use a username or undertake any other action or communication that would give the impression that the You are another Member or are acting on their behalf. The Site reserves the right to prohibit or terminate Your Membership Account because of the use of usernames that the Site, in its sole discretion, deems inadvisable.

You are responsible for maintaining the confidentiality of your Membership Account information. You shall be responsible for all uses of the Membership Account on the Site, whether or not they are authorized by You.  Notwithstanding the foregoing, You shall immediately notify the Company of any unauthorized use of Your Membership Account.

Membership Fee.  There is currently no membership fee (“Fee”) for the use of this Site.   Company maintains the right to change the Fee at any time.  Notice of the change of this Site’s policy regarding Fees will be provided to Members when they access the Site.

Content Posted on the Site. The Company takes no responsibility for the communications or information contained in any advertisement submitted by third parties on the Site or any posts or forum where Members or third parties may submit the same on the Site (collectively, “Third Party Content”).  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.

 

Any images displayed on the Site are either the property of, or used with permission by, Company. The use of these images by You, or anyone else authorized by the You, 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 text, images, photos or other materials (“Member Content”) that are posted by Members.  Rather, all such rights shall be retained by the Member, to the extent that the Member has such rights under applicable law.  Member acknowledges and agrees that Company’s acknowledgement of the Member’s right to the intellectual property rights in his Member Content does not constitute a legal opinion or legal advice, but rather, is intended solely as an expression of Company’s intention to not require the Member to forego certain rights or assign certain rights to Company with regard to the Member Content, subject to these Terms.  However, by submitting suggestions, ideas, comments or questions, or displaying, posting or publishing any Member Content on the Website, Member is expressly granting the Company a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and fully sublicensable and transferable, limited license to modify, use, adapt, translate, create derivative works from, publicly perform, publicly display, republish, reproduce and distribute his Member Content in any form, media or technology now known or hereinafter discovered or created.  Member further grants all other Members or users of the Site non-exclusive access to his Member Content through the Site, and to use, reproduce, distribute, display and perform such Member Content as permitted through the functionality of the Site and under these Terms.  Moreover, as otherwise set forth herein, Member represents and warrants that it has all right and title in and to the Member Content, and that no aspect of the Member 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 Member Content.

You grant an irrevocable, perpetual, non-exclusive, fully compensated, sublicensable, worldwide license to use any content You include on the Site.  This includes any and all information contained within Your Portfolio such as Your thoughts and comments, professional work, sound files, videos, photos, written work, pictures, and any other files.  You represent to Company that you have all rights in and to the material, including all copyright and trademarks, to the material You include on the Site or within Your Portfolio.

You promise and affirm that you will not post on this Site or send to any Member defamatory, inaccurate, offensive, obscene, profane, threatening, harassing, otherwise illegal materials or materials that infringe upon another party’s rights (including, but not limited to, intellectual property rights).  If the Site finds that any content you provide falls into one of the above categories, we may review and delete the content or the Portfolio it is contained within, in whole or in part, at any time, in our sole discretion.

You acknowledge that by posting any content or materials or otherwise providing content to the Website or the Company, You do so for the express purpose of posting the content or material for public review and/or comment in public forums as well as through private messaging.  Accordingly, by providing content or materials to the Site and/or the Company, in any manner, You waive any and all privacy expectations that You or any other individual who appears in a photograph or picture as part of any posted and published professional work may have in and to that content and authorize the Website and the Company to freely use the same.

 

Termination.  Currently, You may cancel Your Membership Account at any time, by following the links to Customer Support and providing a notice of your intent to cancel the Membership Account along with your username and the e-mail address on record.    Once, Your Membership Account is terminated You will not be able to log into the Site, view Your Portfolio or post comments on another Member’s Portfolio.  Further, once Your Membership Account is terminated other Members of the Site will not be able to view Your Portfolio.

 

In the event that a Member cancels their Membership Account, these Terms and the agreement created hereunder, including, without limitation, the grant of rights incorporated herein, will nevertheless remain in full force and effect.

RESTRICTIONS ON USE OF SITE

This Site is meant to be used for social networking purposes. Accordingly, You may not, without the express prior written authorization of this Site:

(a) You, when utilizing the Site, 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) You will not utilize the Site in a manner that is harmful to the Company or any other person or entity;

(c) You will not utilize the Site to exploit people in a sexual and/or violent manner;

(d) You will not utilize any information that You gained as a result of using the Site illegally or improperly violate another person’s or entity’s privacy rights.

(e) You shall not utilize the Site 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);

(f) You shall not denigrate any ethnic, racial, sexual or religious group by parody, stereotypical depiction or otherwise;

(g) You shall not encourage or otherwise depict glamorized drug, alcohol or other substance abuse;

(h) You 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;

(i) You 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 You.

(j) You shall not utilize the Site 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;

(k) You shall not use any robot, spider or other intelligent agent software or device to access or monitor the Site in any manner;

(l) You shall not access the Site more than ten (10) times a day;

(m) You will not restrict any other Member from properly using the Site, including without limitation, by way of “computer hacking” or otherwise altering the software or functionality of the Site and its underlying programs;

(n) You will not imply that any of Your statements are endorsed by the Company, or that You are otherwise associated with the Company in any manner;

(o) You shall not solicit, buy, sell, share or otherwise disseminate any other Member’s username, password or other personal information or any other content or materials posted by another Member;

(p) You will not use the Site if You are 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 Site;

(q) You will not transmit any material, non-public information about any person or entity without the proper authorization to do so;

(r) You will not transmit any advertisements, solicitations or any  unsolicited communications through the Site without the Company’s express permission to do so, which may be unreasonably withheld;

(s) You will not cover or obscure any advertisements located within the Site;

(t) You will not post to the Site any incomplete, false or inaccurate information or information which does not belong to the You;

(u) You will not revise, modify, reverse engineer or in any way alter any portion of the Site or its contents or underlying technology;

(v) You will not “frame” or “mirror” any part of the Site;

(w) You will not utilize any device to enable him to circumvent the structure of the Site and/or spam or flood the Site;

(x) You will not collect or store any information about other Members of the Site without the Company’s express permission to do so, which may be unreasonably withheld;

(y) You will not sell or otherwise transfer Your Member Account;

(z) You shall not impersonate any other person and/or falsely state; otherwise misrepresent that You have an affiliation with any other person or entity; or otherwise mislead, deceive or defraud the Company, another Member or any other party, including without limitation, utilizing another person’s username, password, Member Account information or another person’s name, likeness, voice, image of photograph;

(aa) You will not create a database utilizing any information found within the Site;

(bb) You will not record any streaming audio or video located on the Site.

(cc) You will not violate any laws, third party rights or the policies outlined in these Terms;

(dd) You will not duplicate, create derivative work of or violate the copyright of this Site except as specifically authorized in these Terms;

(ee) You will not remove, alter or amend any copyright or other proprietary notices from this Site;

(ff) You will not infringe upon the intellectual property rights of Company or a third party;

(gg) You will not circumvent any encryption or other security tools used anywhere on this Site (including but not limited to the theft of usernames and passwords or using another person's username and password in order to gain access to any area of this Site);

(hh) You will not sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or otherwise assign to any third party any of your rights to access and use the Site or services as granted in this Agreement;

(ii) You may only create a Portfolio for Yourself. You may not create a Portfolio for a fictious person or for  anyone other than a natural person;

(jj) You will not harass, abuse or harm another Member or person, including sending unwelcomed communications to others using the Site;

(kk) You will not share information, content or materials of non-Members without their express consent;

As part of the Company community, You agree to cooperate with the U.S. in preventing any unauthorized use of the Site.  If You recognize or incur any problems using the Site, any violations of these Terms or any offensive content please contact us.

Company may expel Members (as defined below) and prevent their further access to some or the entire Site for violating the Terms, applicable law, rule or regulation, conduct that is abusive, illegal or disruptive, or otherwise poses a potential liability for Company.  Without limitation, the Company may cancel a Membership Account (as defined below) and/or other access to the Site at any time, for any or no reason.

Abuse of the SITE

If, in Company’s sole discretion, it determines that You are creating potential liabilities, or acting inconsistently with these Terms, Company may, without limitation, limit, suspend or terminate Your Membership Account, prohibit access to the Site, remove Your Portfolio, and/or take technical and legal steps to keep You off the Site.  You otherwise acknowledge and agree that this is in the Company’s sole discretion and that it shall not be obligated to do so. Notwithstanding the foregoing, You acknowledge and agree that Company can terminate Your right to use this Site 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. Company reserves the right to investigate and take appropriate legal action against any violation of these Terms.

You further understand and agree that if Your Membership Account is suspended or terminated, You may not create a new Membership Account or use another Membership Account to avoid the restrictions or limitations.

You acknowledge and agree that Company shall not be liable to You or to any other person or entity for the termination of use of this Site, or any claims related to the termination or suspension of use of the Site.

Miscellaneous

Member Disputes. You are solely responsible for Your interactions with other Members.  Company reserves the right, but shall have no obligation, to monitor or otherwise involve itself in any disputes among Members.

Copyrights; Restrictions on Use.  The Site and the materials contained in it are copyrighted by 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, Company, its affiliates or its licensors.  The Site nor any of the materials contained in it may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale or redistributed in any way without the prior written permission of Company and its applicable licensors.

Copyright Infringement.  It is the policy of Company to respond expeditiously to claims of copyright infringement.  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.  Company may elect to terminate access for any Member 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 physical or electronic 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 Site (preferably including specific URLs associated with the material); (iv) the Copyright Owner’s mailing address, telephone number and email address; (v) a statement by the Copyright Owner that he/she 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 the Copyright Owner or someone authorized to act on the Copyright Owner's behalf is submitting the notice.  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.”  You acknowledge and agree that Your failure to properly comply with the requirements of the law and/or this provision may make Your DMCA Notice invalid.

Trademarks.  Certain names, logos and materials displayed on the Site constitute trademarks, tradenames, service marks or logos ("Marks") of Company or other related entities.  You are not authorized to use any such Marks or any variations thereof.  Ownership of all such Marks and the goodwill associated therewith remains with Company or other related entities.

Communications.  Company MAKES NO GUARANTEE OF CONFIDENTIALITY OR PRIVACY WITH REGARD TO ANY COMMUNICATION MADE BY OR THROUGH THE SITE, WHETHER TO Company, THROUGH A POST TO THE SITE OR TO ANOTHER MEMBER.  Company specifically reserves the right, and You hereby authorize Company, to monitor transmissions over the Site 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 Company, if any, that are to be given under these Terms must be in writing, which shall be delivered 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 Company shall be deemed given only upon receipt.  Notices to Company shall be addressed as set forth below unless it changes the address in writing by updating these Terms.  The address for giving notice to Company is as follows:

 

Soul-ution Entertainment LLC

5429 Justine Way

Winter Park, FL 32792

 

Notices to You shall be provided by Company via email or any other address which Company reasonably believes to be associated with the You.  Notice shall be deemed effective upon delivery of the same by Company.  Moreover, and without limiting the foregoing, by using the Site, You acknowledge and agree that You are communicating with Company electronically, and consents to receive communications from Company electronically.  Company may communicate, and provide effective notice to You, by sending You emails or by posting notices on the Site.  You acknowledge and agree that all agreements, notices, disclosures and other communications that Company may provide to You electronically is effective; satisfies any legal requirement that such communication be in writing; and shall be deemed delivered to You.

 

Indemnification.  You agree to indemnify, hold harmless and defend 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), Directly or indirectly relating to (i) Your 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 You to comply with these Terms; (iii) Your use of the Site; (iv) Your defamation, libel, slander or other tortious act against a third party; (v) a breach of any representations, guarantees, covenants and/or warranties provided by You to another Member; and/or (vi) any act or omission or willful misconduct by You that results in a claim for breach of any representations, warranties or covenants made herein against any of the Company Parties.

Attorneys’ Fees.  If Company or any of the Company Parties undertake any action to enforce these Terms, such party will be entitled to recover from You, and You 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, 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.

Protection of Children.  No one under the age of eighteen (18) is permitted to use the Site without the involvement of a parent or guardian.  If You are a parent and believe Company may have inadvertently collected such information from Your child, please notify Company immediately by sending an email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  Moreover, You 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 You 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, 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 Company.  Rather, it is being provided only as an example and for the Your convenience.

Net Nanny – available at http://www.netnanny.com
SafeEyes – available at http://www.internetsafety.com/safe-eyes
I.M. Control! – available at http://www.imcontrol.net

Moreover, to the best of our knowledge, the Site contains no child pornography.  If You identify any images, real or simulated, depicting minors engaging in sexual activity within the Site, You are obligated to report the image to the Company by immediately sending an email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  All reports will be immediately investigated and appropriate actions will be taken.  Again, Company recommends that Members of this Site use parental control protections such as those listed above, which may help users limit minors’ access to harmful materials.

Communications Decency Act.  You acknowledge and agree that Your participation in and on the Site is at Your own risk.  Company takes no responsibility for any communications between You and other Members of the Site.  You acknowledge that Company in its operation of the Site is simply serving as a passive conduit and does not control the quality, safety or legality of any interactions between Members of the Site, or any information posted by Members or third parties on the Site, nor does it endeavor to determine the truth or accuracy of any messages posted by third parties or any other information.  Accordingly, You agree that 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.  Please refer to the second paragraph of the “General Disclaimer” provision on the first page of the Terms and Conditions for further clarification.

Cookies.  Company specifically acknowledges and hereby notifies You that it may utilizes “cookies” in connection with the operation of the Site.  You agree that such cookies may be placed on Your computer, in connection with Your access to, and use of, the SITE.  Nevertheless, You should note that You can likely make adjustments to Your web browser which may enable it to control the use of cookies.  Such action, however, could affect the Your use of the Site.

Disclaimer.  You explicitly agree that use of the Site is at Your own and sole risk. The Site is 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 Site nor Company make any representations or warranties that the Site, timely, secure or error free; nor does the Site or Company make any representations or warranties as to the quality, fitness, truth, accuracy, currency, reliability or wholeness of the Site or any of the materials contained herein.  The Site may be modified or discontinued at any time with or without reason and with or without notice to You, without liability to You or any third party. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Site contained herein is done at Your own discretion and risk and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material and/or data.  You understand that 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.  Company makes no warranty regarding any use or disclosure of confidential or private information You may provide.  Company may change any of the Terms found on the Site at any time without notice.  Company makes no commitment to update the information found on the Site.  The warranties and representations set forth in these Terms are the only warranties and representations with respect to these Terms, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between You and 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 You.  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, Company is not responsible for the conduct of other Members, whether online or offline.  Under no circumstances shall Company be responsible for any loss or damage, including, without limitation, emotional distress, other personal injury or death, resulting from the use of the Site or the conduct of any other Members, whether online or offline.

Limitation of Liability.  Company ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF OR BROWSING IN THE SITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE SITE, 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 SITE 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 SITE FOR COMMUNICATING WITH OTHER MEMBERS), 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 Site, or any of the Company goods or services, Company’s liability shall in no event exceed US $100.00.  Some states do not allow limitations of liability, so the foregoing limitation may not apply to You.

Release.  BY UTILIZING THE SITE, YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE AND GIVES UP ANY AND ALL CLAIMS AND RIGHTS WHICH YOU MAY HAVE AGAINST 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 SITE AND GOODS AND SERVICES RELATED THERETO. YOU FURTHER WAIVE, RELEASE AND GIVE 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 SITE.  WITHOUT LIMITATION, YOU 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 YOUR USE OF THE SITE OR ANY OF THE PRODUCTS AND SERVICES OFFERED THEREIN.  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 You are a California resident, You 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.”  You hereby acknowledge, agree and stipulate that this waiver is being made consciously and with full understanding of the rights that You may be giving up.

Notwithstanding any termination of the Your access to the Site or any termination of a Membership Account, You acknowledge and agree that the representations and obligations of You, 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 “Company” is used in connection with these Terms, and in accordance with the other modes and methods set forth in the other webpages of the Site regarding its use in regard to a right, protection or benefit, it shall be construed to encompass Company, its related entities, successors, assigns, shareholders, officers, directors, members, officers, employees, attorneys and agents.  Further, the term “You” used in connection with these Terms shall include his/her/its heirs, related entities, successors, assigns, shareholders, directors, officers, members, employees and agents.

Authorized Permission for Use.  You shall be considered an entity if the individual accessing the Site 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 You are an entity, the person using the Site on its behalf hereby makes the material representation upon which You wish Company to rely that You are authorized to bind that entity to the Terms, as well as any other obligations imposed or undertaken through use of the Site.

Dispute Resolution.  YOU MAY NOT INSTITUTE A SUIT AT LAW OR EQUITY REGARDING ANY DISPUTE, WHETHER DIRECTLY OR INDIRECTLY RELATED OR COLLATERAL TO THESE TERMS OR TO THE USE OF THIS SITE OR ANY OF COMPANY’S PRODUCTS OR SERVICES.  ALL SUCH CLAIMS OR DISPUTES, WHETHER BETWEEN OR AMONG THE YOU AND 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 You 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; (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 You or 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.  Company and You 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, or the issuance of injunctive relief. The award rendered by the arbitrator in any arbitration under these Terms 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.  You agree that the laws of the State of Texas shall govern these Terms and any dispute, controversy or claim directly or indirectly related to such use.  Further, You consent to the jurisdiction of the District Court in the State of Texas with venue in Travis County (“County”) or, if federal jurisdiction exists, at the option of either party, to the jurisdiction of the United States District Court for the Western District of Texas, with venue in Austin Vicinage, to seek injunctive relief, compel an arbitration and/or enforce an arbitrator’s award.  Any arbitration shall be conducted in the State of Texas with such arbitration to be conducted in Travis County or, in the event that neither party nor their counsel has offices in the County, then the arbitration shall be conducted in either the arbitrator’s office or that of either Party’s counsel, whichever is closest to the County.  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 Your 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 Texas.  You agrees that regardless of any statute or law to the contrary, any claim or cause of action by You arising out of or related to use of the Site or any services or goods offered or sold by 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.  You covenant and agree to perform all further acts and execute all supplementary instruments or documents which may be requested by Company to carry out the provisions and effectuate the intent of these Terms.

 

Assignment. Company may freely assign its rights and obligations in and to these Terms.  You acknowledge that You may not assign, transfer or sell Your rights or obligations under these Terms 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 may be legally prohibited or otherwise unenforceable in certain jurisdictions and not others.  In such event, these Terms 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 are 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 shall remain in full force and effect and shall not be invalidated or rendered unenforceable.

 

Links to Other Sites.  You acknowledge and agree that Company has no responsibility for the accuracy or availability of information provided by websites to which You may link from the Site (“Linked Sites”).  Links to Linked Sites are provided as a convenience to You, and do not constitute an endorsement by or association with Company of such sites or the content, products, advertising or other materials presented on such sites.  Company does not author, edit or monitor these Linked Sites.  You acknowledge and agree that 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 You accesses any Linked Sites, You does so at Your own risk.

 

No Third Party Beneficiaries.  These Terms 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 or otherwise set forth in the Site, except as may be specifically provided herein.  These Terms 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.

 

Prohibited by Law.  Company does not represent that the Site or Company’s services, are appropriate or available for use in any particular geographic location.  You are accessing the Site on Your own initiative.  In the event that any aspect of the Site or these Terms is prohibited by law in Your jurisdiction, You agree not to use the Site or any of the Company’s products or services.  It is solely Your responsibility to determine whether You are allowed by law to participate in the Site.  Without limitation, You releases Company from all liability that could arise from Your prohibited participation in the Site, prohibited purchase of products or services or acceptance of these Terms.  Moreover, and without limiting the indemnification otherwise provided herein, You 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 You.

Without limiting the foregoing, aspects of this Site 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 Site, You make the material representation and warranty upon which You seek Company to reasonably rely that You are 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, You agree 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, You acknowledge and agree that You shall comply with all applicable laws and regulations regarding the transmission of technical data from the United States or the country in which You may reside.  In the event that You are located outside the United States, You acknowledge and agree that You, and not Company, is responsible for ensuring that any products or services that You may purchase from Company are permitted to be imported into the country in which You are located.

 

Miscellaneous.  Company’s failure to enforce any term, provision or condition of these Terms, including the breach or default thereof, by conduct, course of dealing or otherwise, in one or more instances shall not be deemed a waiver.  You specifically acknowledge that You have not accepted these Terms on reliance of any representations or other promises of Company, which are not specifically included herein.  You specifically stipulate that these Terms do not constitute a contract of adhesion.  The gender terms in these Terms shall apply equally to either gender.  The headings in these Terms shall have no force and effect.  You acknowledge and agree that these Terms 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 Your use of the Site, You represent that You have had the opportunity to review these Terms with counsel of Your choosing, if You wished to do so.  You further acknowledge that You have thoroughly read these Terms; understand that You are giving up certain legal rights that may otherwise exist; have asked any questions You desire to clarify its meaning; and believe it is in Your interest to nevertheless utilize the Site.