TERMS OF SERVICE
Updated and effective as of November 9, 2017
1. OVERVIEWAbout the Company
Beracode, Inc. and its affiliates and subsidiaries, and their respective directors, officers, and employees, (collectively, “Duopana,” the “Company,” “we,” “us” or “our”) operate the website located at duopana.com and other related websites, subpages, subdomains, Community Sites (as defined below), mobile applications, content, products, offerings, information, tools, software and services, including any software provided to you that allows you to access such websites and mobile applications from a computer or mobile device (collectively, the “Site”).
Please read these Terms of Service carefully before accessing, viewing or using our Site. By accessing, viewing or using the Site or any part of it, including by signing up or registering for an account or by using or accessing any of the Services (as defined below), you agree to be bound by these Terms of Service and to all other terms, conditions, policies and notices that appear on the Site, including those additional terms and conditions and policies referenced herein and/or available by hyperlink, and including any subscription fees or pricing terms contained on the Site at or about the point of sale, or that otherwise pertain to the terms and conditions of your contract with us (collectively, these “Terms of Service” or “Terms”).
These Terms of Service are a legal contract between the Company and you. If you do not wish to be bound by these Terms of Service or if you do not agree with all of the terms and conditions in these Terms of Service, you may not use the Site or the Services. Acceptance by you of these Terms of Service and agreement to be bound hereby is expressly conditioned upon your assent to all of the terms and conditions in these Terms of Service. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service. These Terms of Service apply to all users of the Site, including without limitation users who are browsers, vendors, merchants, advertisers, promoters, Customers (as defined below), Community Managers (as defined below), Community Members (as defined below), Contract Parties (as defined below), and other users of any type.
Any new features, offerings, information, tools, software or services that are added to the Site shall also be subject to these Terms of Service. You can review the most current version of these Terms of Service at any time on this page (at duopana.com/terms).
Capitalized terms used in these Terms of Service have the meanings assigned to such terms in the text of these Terms of Service or as set forth in this Section:
“Duopana Content” means any Content provided or made available to any user by Duopana through (and including) the Site or as part of the Services.
“Duopana Materials” means the Site (including every Community Site), the Services, the Duopana Content, the Duopana Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software, know-how and other technologies and inventions, technical or functional descriptions, requirements, plans or reports, that are provided or used by Duopana in connection with the Services or the Site or that otherwise comprise or relate to the Services, the Site or the Duopana Systems. For the avoidance of doubt, Duopana Materials include the Resultant Data and any information, data or other content derived from the Company’s monitoring of any Customer’s, Community Manager’s, Community Member’s, Contract Party’s or other user’s access to or use of the Services or the Site or any Community Site; provided, however that Duopana Materials do not include Submitted Content unless and to the extent otherwise expressly provided herein or assigned to Duopana.
“Duopana Systems” means the information technology infrastructure used by or on behalf of the Company in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by the Company or through the use of third party services.
“Community” (or, if more than one, “Communities”) means a web-hosted “software-as-a-service” platform provided by Duopana to Customers as part of the Services that includes a suite of cloud solutions designed to allow a Customer to engage, communicate with, and market to, the Customer’s actual and prospective clients, customers, vendors, stakeholders, partners, interested parties and any other Community Members for the purpose of branding and brand development, customer engagement and other marketing and general business purposes. Depending on the context, “Community” may designate (a) the collection of cloud-hosted solutions comprising the functionality of the related Community Site, (b) collectively, the Community Manager, Customer, Community Members and other participants involved in similar capacities, (c) the aggregate Content appearing on or submitted or transmitted through the Community Site, or any combination of the foregoing. A Customer may subscribe for Services relating to one or more Communities.
“Community” (or, if more than one, “Communities”) means a web-hosted “software-as-a-service” platform provided by Duopana to Customers as part of the Services that includes a suite of cloud solutions designed to allow a Customer to engage, communicate with, and market to, the Customer’s actual and prospective clients, customers, vendors, stakeholders, partners, interested parties and any other Community Members for the purpose of branding and brand development, customer engagement and other marketing and general business purposes. Depending on the context, “Community” may designate (a) the collection of cloud-hosted solutions comprising the functionality of the related Community Site, (b) collectively, the Community Manager, Customer, Community Members and other participants involved in similar capacities, © the aggregate Content appearing on or submitted or transmitted through the Community Site, or any combination of the foregoing. A Customer may subscribe for Services relating to one or more Communities.
“Community Site” ” means a website in the form of a blog platform or otherwise (including all subpages, subdomains, mobile applications and related Content, any admin or user tools or site functionality in connection therewith, and any advertisements, promotions, goods, products, services or offerings contained, posted, offered or displayed thereon) developed and hosted by Duopana on behalf of a Customer as part of the Services and managed by the Community Manager associated with such Community for the limited permitted purposes herein, which include Community and brand building and management, Content creation and blogging, client engagement and marketing, and user analytics.
“Community Manager” ” means the user designated by a Customer to register with Duopana as the designated Community Manager for one or more of such Customer’s Communities and related Community Sites. The Community Manager for a Community and related Community Site has certain admin rights with respect to such Community Site, including the ability and responsibility for, among other things, general day-to-day maintenance of the Community Site, posting, organizing, managing, editing and curating blog posts and other Submitted Content (as defined below), interacting or corresponding with Community Members as required, serving as the point of contact for any business or correspondence by and between Duopana and such Customer, and serving as the point of contact for any matters or transactions by and among such Customer, any Contract Party, and Duopana in its capacity as Contracting Agent for such Customer in respect of any such transaction with a Contract Party.
“Community Member” ” means, with respect to any Community and corresponding Community Site, any user who registers for a user account with such Community Site for the purposes of engaging with the Community, viewing or browsing Content posted by the Community Manager, Customer or other Community Members, posting Content to the Community Site or corresponding or interacting by other permitted means with the Community, the Community Manager, Community Members, Contract Parties or others involved with such Community. A user may engage with one or more Communities and may be a Community Member with respect to more than one Community.
“Content” ” means any software, technology, designs, materials, information, communications, opinions, records, messages, comments, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, videos, photos, images, reviews, ideas, applications, site functionality, widgets, buttons, labels, suggestions, proposals, blog posts, offers, plans, advertisements, promotions, articles and other data (including data that is or may be deemed Personal Information) or copyrightable or non-copyrightable materials or content, including the selection, arrangements, functionality, processes and user experiences in respect thereof.
“Contracting Agent” ” means the Company in its capacity as the exclusive agent on behalf of either a Customer (or its designated Community Manager acting on its behalf) or a Community Member in connection with a Third Party Contract.
“Contract Party” means a user or other person (whether such user or person is also a Customer, Community Manager, Community Member or any other person or third party, even if such person is not a user) that enters into a Third Party Contract with a Customer (or its designated Community Manager) or a Community Member.
“Customer” ” means a user or other person (whether such user or person is also a Customer, Community Manager, Community Member or any other person or third party, even if such person is not a user) that enters into a Third Party Contract with a Customer (or its designated Community Manager) or a Community Member.
“Intellectual Property Rights” ” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, know-how, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
“Process” ” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Resultant Data” means information, data and other Content that is derived by or through the Services from the Processing of Submitted Content and is sufficiently different from such Submitted Content that such Submitted Content cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or Content.
“Services” means the proprietary system, Site, mobile applications, products, offerings, features, information, tools, software, and services provided by the Company, including, without limitation: (a) access to the Company’s cloud-hosted software-as-a-service platform for building and managing Communities and Community Sites; (b) blogging, site building, communication and other tools (including, without limitation, the Community Site dashboard and various analytics and Third Party Applications (as defined below) available to Community Managers) that allow Community Managers to manage, maintain and build a Community Site and engage and communicate with Community Members; © project management and document solutions and storage; (d) payment services; (e) marketing tools, metrics and analytics; (f) e-learning tools and applications; and (g) marketplaces.
“Submitted Community Member Content” means any Content submitted, uploaded, transmitted, posted or otherwise made available on or through any Community Site or the Site by any Community Member.
“Submitted Content” means any Content that is either Submitted Community Member Content or Submitted Customer Content (or both), but not Duopana Content.
“Submitted Customer Content” means any Content submitted, uploaded, transmitted, posted or otherwise made available on or through any Community Site or the Site by any Customer or Community Manager (acting in the capacity of such), but not including in any form or derivation: (a) the Community Site itself or any components thereof, (b) any components of the Site or the Services, any Duopana Content or any other Duopana Materials, or © any Submitted Community Member Content.
“Third Party Contract” means a legal contract or agreement (whether oral, written or electronic, including web-based agreements or agreements made or entered into through the Site or facilitated by the Services) by and between either (i) a Customer (or its designated Community Manager on behalf of such Customer) and a Contract Party, or (ii) a Community Member and a Contract Party (in either case, the “parties” to such Third Party Contract) relating to or involving any of: (a) the sale of goods (including Content), services (including advertising or marketing space or services, or blogging, editing or Content creation services) by a Customer (or Community Manager acting on behalf of a Customer) to the Contract Party, or the purchase of goods or services by a Customer (or Community Manager) from the Contract Party; or (b) the sale of goods or services by a Community Member to the Contract Party, or the purchase of goods or services by a Community Member from the Contract Party; provided, in either case, that such contract was facilitated by or through the Services, the Site or a Community Site, or that either party thereto first became aware of the identity and/or contracting interest of the other party thereto by or through the Services, the Site or any Community Site.
“user” or “you” or “your” means any person who views, accesses or uses the Site or the Services in any way. A user may be a Customer, Community Manager, Community Member, Contract Party, or some, all or none of the foregoing.
3. THE SERVICESAbout the Services
Duopana provides a cloud-hosted software-as-a-service platform for building and managing online Communities through Community Sites and related functionality and offerings. A Community Site is a web-based blogging and general Content platform hosted and provided by the Company and managed and maintained by a Community Manager that allows a Customer and its corresponding Community Manager to build and engage a user base of Community Members through rich, community-sourced and/or Customer-generated Content, brand marketing, communications and messaging, advertising and promotions and social networking, and provides Customers and Community Managers with access to proprietary and third-party data analytics and tools designed to facilitate Community building, engagement and brand marketing.
Customers who subscribe for Services are provided access to Community building tools. A Customer must designate a Community Manager for each Community it subscribes for. Community Managers build, manage and maintain a Community Site for the applicable Community using Duopana’s proprietary and third party licensed tools and software. Community Members are users who register for an account as a Community Member with a particular Community Site. A Community Member may access, view and use Content on the applicable Community Site to which it is registered, and in certain cases may create and submit Content to be posted on such Community Site or may otherwise transmit Content and communicate with the Community Manager or other Community Members.
The Services also provide a platform for Community Members to exchange messages, information, files and documents with each other, with Community Managers and, in certain cases, with Contract Parties and with Duopana, including messages, information, files and documents that are part of any Third Party Contract arranged or sourced through the Site or any Community Site. The Services also provide a means for Customers to tender payment to Duopana for the Services, for parties to a Third Party Contract to tender payments to their counterparties or to Duopana in respect of Duopana’s role as Contracting Agent, and for taking feedback from users.
Parts of the Site and the Services involve or rely on third party applications to process data, perform analytics, make and process payments and for other functionality made available to users (collectively, “Third Party Applications”). The Site and the Services provide a conduit for users to access, indirectly through the Services, such Third Party Applications. Although we reserve the right to use Third Party Applications as part of the Services, our use of any such Third Party Applications does not imply approval or endorsement thereof by the Company. By agreeing to these Terms of Service, you give us express permission to use such Third Party Applications as part of the Services, including for the processing and managing of payments and the provision of certain data analytics tools and functionality available through the Site.
From time to time, Customers (or their designated Community Managers) or Community Members may have the opportunity to enter into Third Party Contracts with Contract Parties sourced or first identified through the Site or otherwise facilitated by the Services. Third Party Contracts and the rights and obligations of the parties thereto and the Company in respect thereof are subject to the terms and conditions set forth in the Section below entitled “Third Party Contracts.”General Disclaimers Regarding the Services
The Site and the Services are only a marketplace for Customers and their Community Managers, Community Members, Contract Parties and other users of the Site to participate in the offerings provided. All of the Customers and their respective designated Community Managers other than Duopana who build and maintain Communities and Community Sites and who engage and interact with Community Members through such Community Sites are independent service providers and are not affiliated in any respect with the Company (other than through these Terms of Service as a Customer of the Company). Except in cases where Duopana serves as Community Manager for a Community, we do not hire or employ Customers or Community Managers to provide access to Community Sites or related Content and offerings to you, nor are we responsible or liable for any interactions between Customers, Community Mangers, Community Members, Contract Parties or other users who use the Site and the Services or any Community Site to communicate with each other, to post, view, access or use Content, and/or to enter into Third Party Contracts. Notwithstanding the foregoing, in certain cases, we may and we reserve the right to provide services in the capacity as a Community Manager for certain Communities on the Site.
We are not responsible for disputes, claims, losses, injuries, or damage of any kind that might arise out of or relate to any conduct of Customers, Community Mangers, Community Members, Contract Parties or other users, including, but not limited to, any disputes, claims, losses, injuries or damage relating to any Third Party Contract, Submitted Content on the Site or any Community Site, general use of or access to any Community Site, the payment or failure to pay any amounts due under or perform any obligations under any Third Party Contract, tortious interference with any Third Party Contract, or any Community Member’s or other user’s reliance upon any information provided by a Customer, Community Manager, other Community Member, Contract Party or any other user.
The Company makes no representations, warranties or guarantees whatsoever, express or implied, regarding the quality, workmanship, suitability, appropriateness, relevance, value, authorship, accessibility, usability or completeness of any Community Site, any Submitted Content thereon, or of any goods, products, offerings or services offered or sold in connection with any Third Party Contract. Furthermore, a user’s ability to use the Site and the Services, whether that user is a Customer, Community Manger, Community Member, Contract Party or other user, is not an endorsement or recommendation of that user (in that applicable capacity as Customer, Community Manger, Community Member, Contract Party or other user or otherwise) by the Company. We do not warrant that the quality of any Services, information, Content on any Community Site or the Site, or other material obtained by you will meet your expectations or be error-free, or that any errors in the Services or any Content on any Community Site or the Site will be corrected.
The Company makes no representations, warranties or guarantees whatsoever, express or implied, regarding the quality, workmanship, suitability, appropriateness, relevance, value, authorship, accessibility, usability, completeness, accuracy or truthfulness of any Submitted Content provided through the Site, or any credentials, titles, degrees, specialization, education, training, certifications, work history, experience, expertise or any other biographical or other information provided by any Customer, Community Manager, Community Member, Contract Party or any other user displayed on or transmitted through the Site, any Community Site or the Services. Any such information displayed on the Site or any Community Site or transmitted through the Services whether by us or by any user, is based solely on information provided to us by such user, and we do not independently confirm, evaluate or review any such information.
Items of Content provided through the Site or any Community Site are not, and shall not be deemed to be, a representation, warranty, guarantee, model, sample or example of the quality, type, completeness, accuracy, relevance, workmanship, appropriateness, merchantability or fitness for intended purpose of any services, products, goods or offerings, including the Services, provided by any user or by the Company through the Site and/or the Services.
THE COMPANY SPECIFICALLY DISCLAIMS ALL LIABILITY FOR THE ACTS, OMISSIONS OR CONTRACTUAL OBLIGATIONS OF ANY CUSTOMER, COMMUNITY MANAGER, COMMUNITY MEMBER, CONTRACT PARTY OR OTHER USER, INCLUDING, BUT NOT LIMITED TO: (i) ANY CLAIMS THAT ANY CONTENT PROVIDED ON THE SITE OR ANY COMMUNITY SITE IS AN EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR GUARANTEE IN RESPECT OF ANY PRODUCTS, GOODS, SERVICES OR OTHER OFFERINGS, (ii) ANY CLAIMS AGAINST THE COMPANY INVOLVING OR RELATING TO ANY CONTRACTUAL, FIDUCIARY OR OTHER DUTIES UNDER ANY THIRD PARTY CONTRACT OR OTHERWISE, (iii) ANY CLAIMS AGAINST THE COMPANY RELATING TO TORTIOUS INTERFERENCE WITH ANY THIRD PARTY CONTRACT OR OTHER AGREEMENT, (IV) ANY CLAIMS THAT ANY SUBMITTED CONTENT INFRINGES UPON THE INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON, (V) ANY BREACH OF THESE TERMS BY ANY CUSTOMER, COMMUNITY MANAGER, COMMUNITY MEMBER, CONTRACT PARTY OR OTHER USER, OR THE BREACH OF ANY THIRD PARTY CONTRACT BY ANY PARTY THERETO, AND (VI) ANY VIOLATION OF LAW APPLICABLE TO ANY CUSTOMER, COMMUNITY MANAGER, COMMUNITY MEMBER, CONTRACT PARTY OR OTHER USER IN CONNECTION WITH SUCH PERSON’S USE OF OR ACCESS TO THE SITE, ANY COMMUNITY SITE OR THE SERVICES.
4. USER ACCOUNTS
In order to access the Services offered on and through the Site or a Community Site, you must register either with the Site or with a Community Site for an account and receive a password. Customers must register with the Site and subscribe to Services to gain access to Community building tools. A Community Manager designed by a Customer must also register with the Site to gain access to admin and management tools for the applicable Community Site. Community Members must register with the applicable Community Site to gain access to the Content provided on such Community Site. Contract Parties not otherwise registered in another capacity with the Site or any Community Site must register with the Site to gain access to the ability to offer, accept and enter into Third Party Contracts with other users and to receive and make payments through the Site for any amounts payable under any Third Party Contract. To register for an account with the Site or a Community Site, you must submit the information requested through the account registration page on the Site or the Community Site, as applicable, including any payment information as required.
Once you have created your account and provided a user-name and password, you are responsible for maintaining the confidentiality of your password, and you are responsible for all activities that occur using your password to access the Site, any Community Site and the Services. You agree not to share your password, let others access or use your password or do anything else that might jeopardize the security of your password. You agree to notify the Company or the applicable Community Manager if your password on the Site or a Community Site is lost, stolen, if you are aware of any unauthorized use of your password on the Site or a Community Site, or if you know of any other breach of security in relation to the Site or a Community Site. You are solely responsible for any and all uses of your account and all activities that occur under or in connection with it.
All of the information that you provide when registering for an account or otherwise through the Site or a Community Site, including payment methods and related information, must be accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes. You agree not to register for an account on behalf of an individual other than yourself, or register for an account on behalf of any group or entity unless you are authorized to bind such person, group or entity to these Terms of Service. By registering another person, group or entity you hereby represent that you are authorized to do so.
The Company may use tools and authentication processes provided by third party social media platforms and other third party sites for purposes of login and authentication of users, and each user who registers for a user account with the Site consents to such use of social media access and login credentials by the Services, and agrees to provide the Company at the time of registration or login with any such applicable account information for such purposes.
5. FEESSubscription Fees
As a Customer with a registered account on the Site, you may purchase access to Communities and Community Site building and management tools and other Services on a subscription basis, provided that we reserve the right to change our offerings at any time. The subscription fees for our Community building and management Services are set forth on the Site. Any purchase of a subscription to our Services must be made through the Site using Site functionality to accept, submit and process your order. The pricing terms of any subscription offered or sold through our Site are incorporated herein by reference. By submitting your purchase of any subscription to our Services through the Site using Site functionality (e.g., by clicking the “Submit” or any similar button or acceptance mechanism at the point of sale on the Site), you agree to these Terms and you agree in all respect to the pricing terms and fees due in respect of your subscription.
Certain subscriptions for Services may be limited by a cap on outbound data as set forth in the pricing and subscription terms at the point of sale for such subscription. If a Customer exceeds the applicable outbound data limits for its subscription during any subscription period, the Customer will automatically be upgraded to and charged for the next available subscription level with higher data limits for the remainder of the subscription period. The Company will notify any Customer during any subscription period when such Customer has used 90% of its available outbound data capacity for such subscription period. If the applicable outbound data limit is exceeded during any subscription period without an upgrade to the next available subscription level with higher data limits being processed and charged, Services under the subscription may be suspended until the expiration or renewal of the subscription or until such upgrade is processed and charged to the Customer.
We may offer subscriptions on a monthly or annual basis or otherwise. If you purchase a subscription to the Services, whether on a monthly or annual basis or otherwise, your subscription will automatically renew for the applicable subscription period at the then-current rate for such subscription, unless and until you notify us of your decision to terminate your subscription. If you would like to turn off automatic renewal, cancel your subscription, or extend your subscription for additional periods, please contact us at firstname.lastname@example.org. Alternatively, you may turn off automatic subscription renewal, manage your subscription and means of payment and other items, or cancel or suspend your subscription using Site functionality and links from your “my account” page on the Site.
BY PLACING YOUR ORDER FOR A SUBSCRIPTION, YOU AUTHORIZE US TO CHARGE YOUR CREDIT CARD, PAYPAL ACCOUNT, OR OTHER APPROVED PAYMENT METHOD ON FILE FOR AUTOMATIC RENEWALS OR AUTOMATIC UPGRADES OF YOUR SUBSCRIPTION FOR THE APPLICABLE SUBSCRIPTION PERIOD AT THE THEN-CURRENT APPLICABLE RATE UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO ANY SUCH RENEWAL.
Subscriptions can be canceled by the Customer at any time by way of Site functionality or by contacting us in the manner provided above. However, we do not provide refunds for any unused membership periods at the time of cancelation of your subscription. We reserve the right to modify the fees we charge for subscriptions, or the terms of any subscriptions we offer, from time to time in our sole discretion. Before you purchase any subscription for Services, please review any applicable pricing information and other applicable terms available on the Site. When you purchase any subscription to our Services, you acknowledge your agreement with any such pricing terms or other applicable terms relating to your purchase, as any such terms are a part of the agreement between you and us.
We may, in the future, monetize our Services through other means, charges and fees, and to the extent we do, we will notify all users through the Site.Contracting Agent Service Fees
In addition to fees for subscriptions to our Services that we charge to Customers, we also charge a fee of up to 20% (which percentage shall be determined by us in our sole discretion on a case by case basis and/or on the basis of specific agreements between the parties involved, and which fee is subject to change at any time in our sole discretion) of any payment transactions made under a Third Party Contract for which the Company is or is required to be the Contracting Agent for one or more of the parties thereto (the “Contracting Agent Service Fee”). To the extent paid, remitted or collected through the Site, the Contracting Agent Service Fee includes and covers any credit card or other processing fees, hosting fees, or other fees incidental to the transfer of such payment. Any payments or fees made, transferred or paid between parties to a Third Party Contract must be made through Site functionality (including through Third Party Applications for payment processing available through the Site), unless express written permission is granted by the Company to the parties to a Third Party Contract for payments to be transmitted by other means. Any payments made in respect of a Third Party Contract that are expressly permitted by the Company to be made by means other than through the Site (e.g., in cases where the Contract Party is not a user of the Site or the Services and the Company therefore deems payment through the Site to be impractical or unnecessarily burdensome) shall remain subject in all respects to the Contracting Agent Service Fee. Payment of the Contracting Agent Service Fee in respect of any payments made under a Third Party Contract shall be remitted to the Company by setoff from any such payments under a Third Party Contract using the Site and Third Party Applications for payment processing.
In the event that a Third Party Contract is offered, negotiated, sourced, formed, entered into or otherwise agreed to by and between a user and a Contract Party, each applicable Customer (or its Community Manager designee) or Community Member who is a party to such Third Party Contract hereby agrees and irrevocably appoints the Company to be its Contracting Agent in respect of such Third Party Contract, and such limited agency relationship shall entitle the Company to receive and collect the Contracting Agent Service Fee in respect of any payments made or owed under such Third Party Contract. As Contracting Agent, the Company has the right to represent the applicable Customer or Community Member, as the case may be, as exclusive agent in respect of the sale and purchase of any goods (including Content), products, services (including advertising or marketing space or services, or editing, blogging or other Content creation services) or other items purchased and sold under such Third Party Contract. Each user and the Company hereby acknowledges and agrees that the Company is entitled to receive the Contracting Agent Service Fee set forth herein under any Third Party Contract as a commission for providing the Site and Services as a platform that facilitates the formation of such Third Party Contracts, and for acting as exclusive agent in respect of the purchase and sale of goods and services under such Third Party Contract.
Parties to any Third Party Contract acknowledge, understand and expressly agree to be bound by our Non-Circumvention Policy described in more detail below, which policy is applicable to any Third Party Contract and each party thereto.Payment of Fees
You agree to pay all fees or charges to your account in accordance with the fees, charges, pricing and billing terms in effect at the time of any purchase by you on the Site. By providing the Company with your credit card number or PayPal account details and associated payment information, or details regarding any other approved payment method, you agree that the Company is authorized to immediately invoice or charge your account or payment method on file for all fees and charges due and payable to the Company hereunder and that no additional notice or consent is required.
If a user fails to pay amounts due and payable to the Company for Services, including subscription fees or any Contracting Agent Service Fee or Opt-Out Fee, or any other amounts due under these Terms of Service, whether by canceling its credit or debit card, initiating an improper chargeback, or any other means, the Company may suspend or close the user’s account and revoke the user’s access to the Site, including the user’s authority to use the Site to process any additional payments, enter into Third Party Contracts, or obtain any additional Services. Without limiting other available remedies, the user must pay the Company upon demand for amounts owed under these Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, the Company, at our discretion, may make appropriate reports to credit reporting agencies and law enforcement authorities in cases of non-payment.
If your payment method fails or your account is past due, then we may collect fees owed using other collection mechanisms. This may include charging other payment methods on file with us and/or retaining collection agencies and legal counsel. We may also block your access to any Services pending resolution of any amounts due by you to the Company.
The amount of the subscription fees, the Contracting Agent Service Fee or the Opt-Out Fee that we collect for transactions on the Site, and any other fees that we collect or may collect for the Services are subject to change without prior notice. We reserve the right at any time to modify or discontinue the Services (or any part thereof) without notice at any time. We shall not be liable to you or to any third party for any modification, subscription fee change, Contracting Agent Service Fee or Opt-Out Fee change, or other price change, suspension or discontinuance of the Services.
6. THIRD PARTY CONTRACTSFormation of Third Party Contracts
A Third Party Contract for the purchase and sale of goods or services may be formed through the use of, or facilitated by, the Services between a Contract Party on the one hand, and a Customer (or its Community Manager designee) or a Community Member on the other hand. When goods or services are offered by any party to a Third Party Contract through the Site or any Community Site and the other party to such Third Party Contract accepts that offer (through any customary communication or indication of acceptance generally recognized under applicable laws relating to contract formation, including through the use of Site functionality), a Third Party Contract is generally formed. When any Third Party Contract is formed, the applicable Customer (or Community Manager designee) or Community Member hereby irrevocably appoints the Company as the Contracting Agent in respect of such Third Party Contract, without requiring any further action on the part of the Company or any party or person, and any rights of the Company in respect of its role as Contracting Agent thereunder (including as a third party beneficiary of such Third Party Contract) are hereby deemed to be vested upon such appointment and fully enforceable by the Company. The content of such Third Party Contract shall be governed by general principles of contract law, including the common law of contracts and contract formation, the uniform commercial code of the United States or any applicable state of the Unites States, or the laws of any other applicable jurisdiction, as the case may be, and such content shall generally include the terms and conditions offered and accepted by the parties to such Third Party Contract. The Company is not responsible for or involved in, in any way, the formation, entry into, offer and acceptance, enforceability, or terms and conditions of, any Third Party Contract.
You acknowledge and agree that the Company makes no representations or warranties, express or implied, regarding whether or the extent to which any Third Party Contract entered into between a user and Contract Party was duly formed, whether or the extent to which any putative terms of either party were duly offered, accepted and incorporated into a Third Party Contract, whether or the extent to which such Third Party Contract is enforceable by either party thereto under the laws of any jurisdiction, any remedies that may be available at law or in equity in respect of any breach of such Third Party Contract, whether or the extent to which any subsequent or concurrent writing or agreement supersedes a Third Party Contract or any portion thereof, or about any other matter whatsoever relating to the legal status of any Third Party Contract. While the Company is and shall be appointed as the Contracting Agent of the applicable user in respect of a Third Party Contract and has the right to receive the Contracting Agent Service Fee in connection with payments thereunder (and is thereby deemed to be a third party beneficiary of any Third Party Contract), the Company is not a party to any Third Party Contract and cannot offer any advice, legal or otherwise, regarding the existence, due formation, enforceability or legal status of any Third Party Contract.
The Company provides a platform to facilitate Third Party Contracts by supplying users with communication, collaboration and payment tools, but the Company plays no legal or other role with respect to any Third Party Contract (other than its limited role as Contracting Agent in respect thereof) and is not a party to any Third Party Contract.
You further acknowledge and agree that the formation of a Third Party Contract by and between users and Contract Parties will not, under any circumstance, create an employment or other agency, joint venture, partnership, or service relationship between the Company and any Customer, Community Manager, Community Member, Contract Party or any other user. The Third Party Contract does not create a partnership or agency relationship between the parties thereto, unless otherwise expressly stated in such Third Party Contract.
You acknowledge and agree that a Third Party Contract is comprised only of: (A) the terms and conditions actually offered and accepted or otherwise agreed to by the parties thereto relating to the applicable goods or services that are the subject of such Third Party Contract; and (B) any terms in these Terms and Conditions relating to any Third Party Contract (including, without limitation, the appointment of the Company as Contracting Agent of the applicable user or users in connection with any such Third Party Contract) that are expressly intended to operate as default terms in any Third Party Contract, except in either case to the extent any such terms would be deemed to expand the Company’s obligations or restrict the Company’s rights under these Terms of Service. EACH USER UNDERSTANDS AND AGREES THAT, WITHOUT LIMITATION, THE FOLLOWING TERMS AND CONDITIONS ARE EXPRESSLY MADE PART OF ANY THIRD PARTY CONTRACT: (1) THE IRREVOCABLE APPOINTMENT OF THE COMPANY AS CONTRACTING AGENT BY ANY APPLICABLE CUSTOMER OR COMMUNITY MEMBER THAT IS A PARTY TO SUCH THIRD PARTY CONTRACT, WHICH APPOINTMENT OCCURS AUTOMATICALLY UPON THE OFFER AND ACCEPTANCE OR FORMATION OF ANY THIRD PARTY CONTRACT; (2) THE RIGHT OF THE COMPANY AS THIRD PARTY BENEFICIARY THEREUNDER TO RECEIVE THE CONTRACTING AGENT SERVICE FEE IN RESPECT OF ANY PAYMENTS MADE OR DUE UNDER SUCH THIRD PARTY CONTRACT; AND (3) DISCLAIMERS OF LIABILITY THAT THE COMPANY IS NOT A PARTY TO SUCH THIRD PARTY CONTRACT AND SHALL NOT BE LIABLE TO ANY PARTY TO SUCH THIRD PARTY CONTRACT OR ANY OTHER PERSON FOR ANY ACTS OR OMISSIONS OF ANY PARTY THERETO, FOR ANY CLAIMS RELATING TO ANY GOODS OR SERVICES OFFERED OR PROVIDED THEREUNDER (INCLUDING CLAIMS REGARDING WARRANTIES OR REPRESENTATIONS MADE OR PUTATIVELY MADE THEREUNDER OR RELATING TO TITLE OF ANY GOODS), FOR TORTIOUS INTERFERENCE WITH ANY CONTRACT, OR FOR ANY CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON.
Parties to a Third Party Contract are encouraged to work in good faith to come to a mutual agreement if refunds or cancellation of a Third Party Contract are necessary. Any disputes between a user and a Contract Party in respect of a Third Party Contract are the sole responsibility of the parties to such Third Party Contract. The Company is not a party to any Third Party Contract and does not offer dispute resolution services as part of the Services. If the parties to a Third Party Contract cannot come to a mutual agreement in the event of the termination of a Third Party Contract or the alleged breach of a Third Party Contract by either party thereto, each party thereto is solely responsible for its contractual obligations thereunder, and for prosecuting any contractual rights it may have thereunder, and for pursuing any available remedies at law or in equity, at its sole cost and in its sole discretion, without any involvement of, advice from, or liability of the Company.
The Company is not responsible or liable for disputes, claims, losses, injuries or damage of any kind that might arise out of or relate to any Third Party Contract. The parties to the Third Party Contract waive any claims against the Company for tortious interference or any other causes of action under any legal theory whatsoever related to any Third Party Contract.Non-Circumvention Policy
If you are a Customer (or its designated Community Manager), Community Member or other Contract Party, you acknowledge and agree that a substantial portion of the compensation the Company receives for making the Site and the Services available to you is collected through the Contracting Agent Service Fee. The Company only receives this Contracting Agent Service Fee when the parties to a Third Party Contract pay and receive contract payments under such Third Party Contract through the Site. Therefore, you acknowledge and agree that, with respect to any other user on the Site, for sixty (60) months from the later in time of: (a) the time you identify or are identified by such other user through the Site, (b) the time that you enter into any Third Party Contract with such other user, or © the last time that you used the Site to pay or receive payment from such other user under the terms of any Third Party Contract (the “Non-Circumvention Period”), you must use the Site (or an applicable Community Site) as your exclusive method to request, make and receive all payments for goods or services arising under any Third Party Contract with that other user or arising out of your relationship with that other user (each such relationship between parties to a Third Party Contract, a “Contract Relationship”).
You may opt-out of this obligation with respect to each Contract Relationship only if one of the parties to a Third Party Contract pays the Company for each such Contract Relationship a fee of US$2,500 (the “Opt-Out Fee”).
Except if you pay the Opt-Out Fee, you agree not to circumvent your obligations to make and receive all payments under any Third Party Contract only through the Site. By way of illustration and not in limitation of the foregoing, you must not (and, for the avoidance of doubt, any of the following constitutes a violation of our Non-Circumvention Policy and these Terms of Service):
- Hire any user or work as an employee or contractor for any user under a Third Party Contract where any payments for such employee or contractor or other services are made or intended to be made other than through the Site.
- Submit or accept bids, offers, pricing terms, or proposals of any kind, or solicit parties identified through the Site to contact, deliver services, bill, charge, invoice or request or receive payment outside the Site to the extent any such activity would involve or lead to payment outside the Site for goods or services under a Third Party Contract.
- Pay or receive payment for any fees, purchase prices or other amounts due and payable under any Third Party Contract by any means other than through the payment tools provided to you on the Site.
You agree to notify the Company immediately if another person improperly contacts you or suggests making or receiving payments under any Third Party Contract outside of the Site. If you are aware of a breach or potential breach of the terms of our Non-Circumvention Policy as set forth in this Section, please submit a report to the Company by sending an email message to email@example.com.
If you refuse to accept any new version of these Terms of Service or elect not to comply with certain terms and conditions of using the Site and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other user in a Contract Relationship with you that you wish to continue working with on whatever terms you agree after you cease using the Site.
If you breach or violate any of the terms and conditions of our Non-Circumvention Policy set forth in this Section, you acknowledge and agree that each of you, and the other user in respect of your applicable Contract Relationship, will be jointly and severally liable to the Company for the full amount of the Opt-Out Fee, and such Opt-Out Fee shall be due and payable to the Company by you (and such other user in joint and several liability) in immediately available funds immediately following the date of such breach or violation.
You further agree and acknowledge that payment of the Opt-Out Fee for any breach or violation of this Section is not a penalty, but rather constitutes liquidated damages in a reasonable amount that will compensate the Company for its efforts and resources expended in making the Site available to you and in reliance on these Terms of Service and on the expectation of receiving Contracting Agent Service Fees for goods or services contracted for and delivered or performed by and between users who identified each other on the Site and through use of the Services, and that without the terms, conditions, and agreements contained in this Section, the Company would not be able to offer the Site or the Services or to enter into these Terms of Service.
7. GENERAL USE OF THE SERVICES – PERMISSIONS AND RESTRICTIONS
The Company hereby grants you permission to access, view and use the Site and the Services in accordance with these Terms of Service, provided that you agree that you will not, under any circumstances:
1. distribute in any medium, publicly display, publicly perform, communicate to the public, or create derivative works from any part of the Site, the Services or the Content without our prior written authorization, unless the Company makes available the means for limited distribution through functionality offered on the Site or through the Services;
2. alter, copy, modify, reverse engineer, reproduce, deface, tarnish, mutilate, hack, interfere with, or otherwise use and exploit the Site, any Services, or any Content, except as permitted by these Terms of Service;
3. access Content through any technology or means other than as provided for on the Site or through the Services;
4. use the Site or the Services for any commercial uses without our express written approval or not otherwise contemplated by these Terms of Service, or rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Content to any person (other than users as permitted and authorized hereunder), including on or in connection with the internet or any time-sharing, service bureau, software as-a-service, cloud or other technology or service;
5. use or launch any automated system, including, without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Site or the Services in a manner that sends more request messages to the Company’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; provided, however, that the Company grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole and limited purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials; provided, further, that the Company reserves the right to revoke these exceptions either generally or in specific cases.
6. use any software, technology or device to collect, scrape, crawl, manipulate or harvest any Personal Information or other data, including account names, from the Site or the Services;
7. use any communication systems provided by the Site or the Services (e.g., comments, email, sharing functions) for any commercial solicitation purposes, or solicit, for commercial purposes, any users of the Site with respect to any of their Submitted Content, unless otherwise permitted under and in accordance with these Terms of Service;
8. transmit any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously or otherwise objectionable and offensive;
9. attempt to harass, abuse or harm another person or group;
10. use another user’s account without permission or impersonate another person;
11. provide false or inaccurate information (or information that is misleading or incomplete or intended to deceive any person) when registering for a user account, or interfere or attempt to interfere in any way with the proper functioning of the Site or the Services;
12. upload, submit, transmit, post or link to malicious content intended to damage or disrupt another user’s browser or computer;
13. attempt to circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Site, the Services or the Content therein;
14. use the Site or the Services for any unlawful purpose or for the promotion of illegal activities;
15. access or use the Site or the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law;
16. access or use the Site or the Services for purposes of competitive analysis of the Site or the Services, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage; or
17. otherwise access or use the Site or the Services beyond the scope of the authorization to use the Site and Services granted hereunder.
A breach or violation of any of the above terms or any of the terms and conditions in these Terms of Service may, at our sole discretion, result in an immediate termination of your access to the Site and the Services. We reserve the right to refuse Services to, or to terminate access to the Site and the Services to, anyone for any reason at any time, or to discontinue any part of the Services or all of them at any time. We reserve the right to communicate with and provide information, including any Submitted Content, to law enforcement personnel in situations that we deem appropriate.
8. ADDITIONAL CUSTOMER REPRESENTATIONS AND COVENANTS
As a Customer or a Customer’s designated Community Manager, in addition to any of the obligations and duties applicable to you as a user under these Terms and Conditions, you represent, warrant and covenant that:
1. All information provided, submitted, posted or transmitted by you to us or any other user or otherwise through the Site or the Services as a Customer or Community Manager, including any bank account, PayPal account, or other payment information or account information, is accurate, complete, up to date at all times during your use of the Site as a Customer or Community Manager, and not otherwise designed to mislead, defraud or deceive us or any user;
2. You shall actively monitor, manage and maintain such Community Site with at least the same degree of care, quality, workmanship and level of service that the Company provides with respect to the Services or that is otherwise customary in the industry with respect to the management and maintenance of a commercial website or blogging platform;
3. You shall not permit any Community Members to post, submit or transmit any Submitted Content (and you shall immediately notify the Company upon the posting, transmission or submission of any Submitted Content) that is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable, or that violates or allegedly violates any person’s Intellectual Property Rights or these Terms of Service, or that is reasonably intended to be confidential information, and you shall promptly edit or remove any such Submitted Content from the Community Site;
4. You shall not at any time (including any time following the expiration or termination of your account) post or make publicly available in any way any Personal Information provided, submitted or transmitted to you by any Community Member, and you shall keep all such Personal Information private and confidential and not disclose to any third party (except to the Company and its affiliates and representatives) any such Personal Information; and you acknowledge and agree that you are responsible, and the Company has no liability for, ensuring that no Submitted Content posted or made publicly available or viewable on your Community Site contains any Personal Information;
5. You, as a Customer and/or Community Manager, are responsible for the management of your Community and Community Site, including managing any Community Members and user accounts of Community Members, inviting any Community Members to join your Community Site or restricting access to any persons as you deem necessary or appropriate, curating, posting, withholding and editing any Submitted Content on your Community Site, and any acts or omissions of any of your Community Members in respect of your Community Site including any violations of law or these Terms and Conditions by any of your Community Members; and
6. You shall immediately inform the Company of any violations or potential violations of these Terms of Service by any of your Community Members.
9. PROPRIETARY RIGHTSGrant of Rights to Use Content
Subject to the other terms and conditions herein, Content remains the proprietary property of the person or entity supplying it (or their affiliated and/or third party providers and suppliers) and is protected, without limitation, pursuant to U.S. and foreign copyright and other intellectual property laws.
You shall be solely responsible for your own Submitted Content, including its legality and appropriateness, and the consequences of submitting and transmitting your Submitted Content on the Site and through the Services. You affirm, represent and warrant that you own or have the necessary licenses, rights, consents and permissions to transmit any Submitted Content you transmit, upload, post, share or submit.
You further agree that none of your Submitted Content will contain third party copyrighted material, or material that is subject to other third party Intellectual Property Rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled and authorized to transmit the material and to grant the Company all of the license rights granted by you herein. The burden of determining whether any material is protected by any such right, or whether you have the authority to grant such license, is on you.
You further agree that you will not submit through the Services any Submitted Content that is or that we determine to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates or allegedly violates any person’s Intellectual Property Rights or these Terms of Service, and we may, but have no obligation to, monitor, edit and remove any such Submitted Content for any reason we deem reasonably appropriate in our sole discretion, with or without prior notice to you.
You shall be liable, and the Company shall not have any liability, for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy, or publicity rights or any other harm resulting from any transmission you make of your Submitted Content. Furthermore, each Customer and its designated or appointed Community Managers shall be responsible and liable (in addition to, vicariously, in place of, or jointly AND SEVERALLY with the liabilities attaching to any user in respect of such infringement or harm) for any such liabilities arising from the submission or transmission of Submitted Content by any Community Member on or through such Customer’s or Community Manager’s Community Site.
You hereby grant to the Company, to the extent permitted under applicable law, a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute your Submitted Content, or any portion thereof, in any form, medium or distribution method now known or hereafter existing or developed, and authorize other users to use the Submitted Content. We may modify or adapt your Submitted Content in order to transmit, display or distribute it over computer networks or to Third Party Applications and in various media and/or make changes to the Submitted Content as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media, including those of Third Party Applications. You hereby expressly represent and warrant that you have all of the rights, power and authority to make the grant of license to the Company contained in this paragraph. For the avoidance of any doubt, the license granted by you to the Company under this paragraph shall survive any termination, expiration or cancellation of your user account, subscription to Services, or rights to access and use the Site and the Services.
Additionally, each Community Member hereby authorizes its Community Manager to use the Submitted Content posted, submitted or transmitted by such Community Member in any manner authorized and contemplated hereunder and in any event for the limited purpose of building, maintaining or managing the applicable Community and Community Site, including posting, displaying, modifying, publishing, transmitting and distributing any such Submitted Content on or through the Community Site. You hereby expressly represent and warrant that you have all of the rights, power and authority to make the grant of use rights contained in this paragraph.
The Company hereby grants to you as a user of the Site and the Services in good standing and only during the time period in which your user account remains active, a limited, non-exclusive, non-transferable right to access and use Submitted Content and Duopana Content, for which you have paid all applicable required fees and for which you have been granted access, solely for your personal and authorized business purposes through the Services, in accordance with these Terms of Service. All other uses are expressly prohibited absent our express written consent. Furthermore, each Customer and its designed Community Manager hereby grants to each of its authorized and registered Community Members and to any other users, as users of such Community Site and participants in such Community, a limited, non-exclusive, non-transferable right to access and use Submitted Content, including Submitted Customer Content and Submitted Community Member Content, for which such Community Member or user has been granted access, solely for such Community Member’s or user’s personal and authorized business purposes, and in any event in accordance with these Terms of Service.
No Customer, Community Manager, Community Member or other user shall have any right to use any Content, Services or Duopana Materials outside the applicable Site or Community Site for which the use of such materials is authorized and intended, or in any way that is beyond the scope of the rights granted under this Section. For the avoidance of any doubt, without the written consent of the Company, Submitted Content may not be used, displayed, transmitted, published or reproduced in any form or medium or on any website other than on the applicable Community Site to which such Submitted Content was posted or submitted, and Duopana Content may not be used, displayed, transmitted, published or reproduced in any form or medium or on any website other than on the Site. No Submitted Content, Duopana Content or any Duopana Materials shall be sold, assigned, granted, transferred, licensed or otherwise conveyed to any person in any form or for any purpose whatsoever without the express written consent of the Company.
You may not reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, license, or otherwise transfer or use any Submitted Content or Duopana Content, or any Duopana Materials, unless we give you explicit permission to do so. Submitted Content and Duopana Content is licensed, and not sold, to you.
Though the Company strives to enforce these Terms of Service, you may be exposed to Submitted Content that is inaccurate, objectionable or harmful. The Company does not endorse any Submitted Content submitted through the Services by any user or other licensor, or any opinion, recommendation or advice expressed therein.Intellectual Property Rights
All right, title and interest in and to the Duopana Materials, including all Intellectual Property Rights therein, are and will remain with the Company and any of its applicable third party licensors.
No user has any right, license or authorization with respect to any of the Duopana Materials except as expressly set forth in herein or the applicable third party license. All other rights in and to the Duopana Materials are expressly reserved by the Company and its applicable third party licensors. In furtherance of the foregoing, each user hereby unconditionally and irrevocably grants to the Company an assignment of all right, title and interest in and to any and all Resultant Data, including all Intellectual Property Rights relating thereto.
As between any user and the Company, such user is and will remain the sole and exclusive owner of all right, title and interest in and to all Submitted Content submitted, posted and transmitted by such user, including all Intellectual Property Rights relating thereto, subject to the immediately following paragraph.
10. THIRD PARTY LINKS
The Site and the Services may contain links to third party websites or applications that are not owned or controlled by the Company, or may make use of one or more Third Party Applications on the Site or through the Services. The Company has no control over, and assumes no responsibility for, the content, privacy policies or practices of any third party websites or Third Party Applications. In addition, the Company will not and cannot censor or edit the content of any third party site. By using the Site and the Services, you expressly agree and acknowledge that you, and not the Company, shall be solely liable and responsible for any and all liability arising from your use of any third party website or any Third Party Applications made available to you through the Services.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content or any other transactions made in connection with any third-party websites or any Third Party Applications. Please review carefully the applicable third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns or questions regarding third-party services or any Third Party Applications and products should be directed to the applicable third party. You acknowledge and agree that we provide access to Third Party Applications “as is” and “as available” without any warranties, representations, guarantees or conditions of any kind and without any endorsement.
11. ACCURACY, COMPLETENESS, AND TIMELINESS OF INFORMATION
We are not responsible for Content available on the Site that is not accurate, complete or current. The Content on the Site is provided for general information only and should not be relied upon for any reason without consulting primary, more accurate, more complete, or more timely sources of information. Any reliance on the Content on the Site is at your own risk.
The Site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of the Site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site, including any changes we make to these Terms of Service.
Occasionally, there may be Content available on our Site or through the Services that contains typographical errors, inaccuracies or omissions that may relate to the Services, other users, pricing, promotions and other offers. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any information on the Site or on any related website is inaccurate at any time without prior notice.
We undertake no obligation to update, amend or clarify any Content available on the Site or through the Services or on any related website, except as required by law. No specified update or refresh date applied to the Site or the Services or on any related website should be taken to indicate that any information available on the Site or through the Services or on any related website has been modified or updated.
12. ACCOUNT TERMINATION POLICY
The Company will terminate a user’s access to the Services and cancel and terminate a user’s account if, under appropriate circumstances, the user is determined to have breached these Terms of Service. The Company reserves the right to decide whether Submitted Content violates these Terms of Service for reasons other than copyright infringement, such as, but not limited to, because such Submitted Content is or may be interpreted or deemed to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, of excessive length or otherwise objectionable. The Company may at any time, without prior notice and in its sole discretion, terminate a user’s account for submitting such material in violation of these Terms of Service, or for any other breach or violation of these Terms of Service or applicable law, or the infringement or threatened or alleged infringement of any Intellectual Property Rights of any person.
If a user who is not a Customer (or its designated Community Manager) wishes to terminate his or her account at any time, the user should send a request to terminate the account to firstname.lastname@example.org.
If a Customer (or its designated Community Manager) wishes to cancel or suspend its subscription, such Customer may do so using Site functionality or by contacting us as described above. Prior to termination, expiration or cancellation of a Customer’s subscription, such Customer (or its designated Community Manager) may, by way of Site functionality made available to Customers, download and export certain data relating to such Customer’s subscription, including the registered name and e-mail address for each Community Member in respect of such Customer’s Communities. Following termination, cancellation or expiration of a Customer’s subscription, no such information or data will be available to such Customer or its designated Community Manager.
13. Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our copyright agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You may direct copyright infringement notifications to our copyright agent at the Company’s address at the end of these Terms of Service (with attention to copyright agent), or by email at: email@example.com.
Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owners agent, or pursuant to applicable law, to post and use the material in your Content, you may send a counter-notice containing the following information to our copyright agent:
- Your physical or electronic signature;
- Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- Your name, address, telephone number and e-mail address, a statement that you consent to the jurisdiction of the federal courts in Delaware, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our copyright agent, the Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at the Company’s sole discretion.
14. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SITE, THE SERVICES AND ANY OTHER DUOPANA MATERIALS OR SUBMITTED CONTENT THAT YOU ARE AUTHORIZED TO USE HEREUNDER, SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE, THE SERVICES (INCLUDING THIRD PARTY APPLICATIONS), ANY DUOPANA MATERIALS OR ANY SUBMITTED CONTENT AND YOUR USE THEREOF. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SITE OR TRANSMITTED THROUGH THE SERVICES OR THE CONTENT OF ANY SITES LINKED TO THE SITE OR ANY THIRD PARTY APPLICATIONS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES OR INACCURACIES OF CONTENT, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE AND OUR SERVICES, ANY CONTENT, AND ANY DUOPANA MATERIALS (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS OR OTHER DUOPANA SYSTEMS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (vi) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE SUBMISSION OR USE OF ANY CONTENT SUBMITTED, POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE ON THE SITE AND/OR VIA THE SERVICES. THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES (INCLUDING THIRD PARTY APPLICATIONS OR UNDER THIRD PARTY CONTRACTS) OR ANY HYPERLINKED SERVICES, AND THE COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES (EXCEPT TO THE EXTENT OF THE COMPANY’S LIMITED ROLE AS CONTRACTING AGENT UNDER ANY THIRD PARTY CONTRACT). AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
15. Limitation of Liability
IN NO EVENT SHALL THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (i) ERRORS, MISTAKES OR INACCURACIES OF CONTENT, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE AND OUR SERVICES, ANY CONTENT, AND ANY DUOPANA MATERIALS, (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS OR OTHER DUOPANA SYSTEMS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (v) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, (vi) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE SUBMISSION OR USE OF ANY CONTENT SUBMITTED, POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE ON THE SITE AND/OR VIA THE SERVICES, AND/OR (VII) ANY THIRD PARTY APPLICATIONS OR ANY THIRD PARTY CONTRACTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
NOTWITHSTANDING ANYTHING IN THESE TERMS OF SERVICE TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY TO ANY USER ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY SUCH USER IN CONSIDERATION FOR THE COMPANY’S SERVICES DELIVERED DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
The Services are controlled and offered by the Company from its facilities in the United States of America and Brazil. The Company makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless the Company, its affiliates and subsidiaries, and their officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Site and the Services, and/or, if you are a Customer or Community Manager, the use of and access to the Site and the Services by your Community Members; (ii) your breach or violation of any term of these Terms of Service, and/or, if you are a Customer or Community Manager, the breach or violation of any term of these Terms of Service by your Community Members; (iii) your breach or violation or alleged or threatened breach or violation of any third party right, including without limitation any Intellectual Property Rights of any person, and/or, if you are a Customer or Community Manager, the breach or violation or alleged or threatened breach or violation of any third party right or Intellectual Property Rights of any person by any of your Community Members; (iv) any claim that your Submitted Content, or the Submitted Content of your Community Members if you are a Customer or Community Manager, caused damage to a third party; or (v) your violation of any applicable law, and/or, if you are a Customer or Community Manager, the violation of any applicable law of your Community Members. This defense and indemnification obligation will survive these Terms of Service and any termination, expiration, suspension or cancellation of your user account and rights to use and access the Site and the Services.
17. Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Services are not intended for children under 13. If you are under 13 years of age, then please do not use the Services.
18. electronic notice
You consent to receive communications from the Company in an electronic form via the email address you have submitted upon registration, and you agree that these Terms of Service, and all other agreements, notices, disclosures and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction.
20. GOVERNING LAW
The Site and the Services shall be deemed to be solely based in Delaware and shall be deemed to be a passive website that does not give rise to personal jurisdiction over the Company, either specific or general, in jurisdictions other than Delaware. These Terms of Service shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. Any claim or dispute between you and the Company that arises in whole or in part from the Services shall be decided exclusively by a court of competent jurisdiction located in Delaware.
For any claim or cause of action (i) raised by a resident of a country other than the United States of America; or (ii) where the total amount of the award sought is less than twenty five thousand dollars (US$25,000), you agree that the Company may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. In the event the Company elects arbitration, you hereby agree to move any claims to the exclusive jurisdiction of an arbitration procedure, which shall be initiated through an established alternative dispute resolution (“ADR”) provider chosen by the Company. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and © any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration expressly excludes claims for injunctive or other equitable relief.
YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE OR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
22. CONTACT INFORMATION
Questions about these Terms of Service should be sent to us at firstname.lastname@example.org or at:
2035 Sunset Lake Road, Suite B-2
Newark, Delaware 19702