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Terms of Service Effective
Date: February 01, 2008 Welcome
to the NoneOfTheAbove08.com, LLC (“NoneOfTheAbove08.com”) website,
which is located at www.NoneOfTheAbove08.com (the "Website").
This Terms of Service ("TOS") contain the terms and conditions
that govern your use of the Website and the NoneOfTheAbove08.com Service
(as defined below). This TOS describes your rights and responsibilities
and what you can expect from the NoneOfTheAbove08.com Service. Your use of
the NoneOfTheAbove08.com Website constitutes your acceptance of and
agreement to this TOS. NoneOfTheAbove08.com
reserves the right to add, delete and/or modify any of the terms and
conditions contained in this TOS, at any time and in its sole discretion,
by posting a change notice or a new agreement on the NoneOfTheAbove08.com
Website. If any modification is unacceptable to you, your only recourse is
to not use the Website and the NoneOfTheAbove08.com Service. Your
continued use of the NoneOfTheAbove08.com Website following posting of a
change notice or new TOS on the NoneOfTheAbove08.com Website will
constitute binding acceptance of the changes. 1.
Services.
1.1
NoneOfTheAbove08.com may provide certain services to you on the Website as
may be amended from time to time including, without limitation, access to
certain services provided by third parties described in Section 1.2
throughout the Website (the “Service”). 1.2
Third-Party Services. NoneOfTheAbove08.com may use third parties to
provide certain services accessible through the Website.
NoneOfTheAbove08.com does not control those third parties or their
services, and you agree that NoneOfTheAbove08.com will not be liable in
any way for your use of such services. These third parties may have their
own terms of use and other policies. You must comply with such terms and
policies as well as this TOS when you use those services. If any such
terms or policies conflict with NoneOfTheAbove08.com's TOS, agreements or
policies, you must comply with NoneOfTheAbove08.com's TOS, agreements or
policies, as applicable. 2.
General Rules. 2.1
Prohibited Use. You may only use the NoneOfTheAbove08.com Service
as expressly permitted by NoneOfTheAbove08.com. You may not cause harm to
the Website or the NoneOfTheAbove08.com Service. Specifically, but not by
way of limitation, you may not: (i) interfere with the
NoneOfTheAbove08.com Service or Website by using viruses or any other
programs or technology designed to disrupt or damage any software or
hardware; (ii) modify, create derivative works from, reverse engineer,
decompile or disassemble any technology used to provide the
NoneOfTheAbove08.com Service; (iii) use a robot, spider or other device or
process to monitor the activity on or copy pages from the Website, except
in the operation or use of an internet "search engine", hit
counters or similar technology; (iv) collect electronic mail addresses or
other information from third parties by using the NoneOfTheAbove08.com
Service; (v) impersonate another person or entity; (vi) use any meta tags,
search terms, key terms, or the like that contain NoneOfTheAbove08.com's
name or trademarks; (vii) engage in any activity that interferes with
another user's ability to use or enjoy the Website or NoneOfTheAbove08.com
Service; or (viii) assist or encourage any third party in engaging in any
activity prohibited by this TOS. 2.2 Privacy Policy. By entering into this TOS, you agree to NoneOfTheAbove08.com's collection, use and disclosure of your personal information in accordance with the Privacy Policy. 2.3
Ordering Policies. If you purchase products on the Website (the
“Products”), you agree to do so in accordance with
NoneOfTheAbove08.com's Ordering Policy and instructions on the Website.
Title to the Products you purchase passes to you when the Products are
delivered to the common carrier. 3.
Create and Buy General Rules and License. 3.1
Description. As part of the NoneOfTheAbove08.com Service,
NoneOfTheAbove08.com offers a service (the "Create & Buy
Service") that allows you to upload images, video, audio, data, and
other content (collectively, "Content") to the Website to
create, produce and purchase Products featuring the uploaded Content for
your own use. 3.2
Delivery of Content. You will upload or deliver to
NoneOfTheAbove08.com all Content that you want to use with the Create
& Buy Service in accordance with the applicable instructions on the
Website and the Content
Usage Policy. NoneOfTheAbove08.com may, in its sole and
exclusive discretion, determine whether any Content complies with such
instructions and is satisfactory for use with the Create & Buy
Service. 3.3
Licensing Your Content to NoneOfTheAbove08.com. You will retain
ownership of the Content that you upload to the Website; provided that you
hereby grant to NoneOfTheAbove08.com a royalty-free, worldwide,
transferable, nonexclusive, right and license to use such Content, in all
media existing now or created in the future, as NoneOfTheAbove08.com deems
necessary to enable you to use the Create & Buy Service to create,
produce and purchase Products. NoneOfTheAbove08.com may sublicense the
rights that you grant it in this Section to a third party subcontractor
only for purposes of providing the NoneOfTheAbove08.com Service,
processing your order, and producing and shipping your Products. 4.
Reservation of Rights. 4.1
Monitoring. NoneOfTheAbove08.com reserves the right, but does not
assume the obligation, to monitor transactions and communications that
occur through the Website. If NoneOfTheAbove08.com determines, in its sole
and absolute discretion, that you or another NoneOfTheAbove08.com user may
breach a term or condition of this TOS or that such transaction or
communication is inappropriate, NoneOfTheAbove08.com may cancel such
transaction or take any other action to restrict access to or the
availability of any material that may be considered objectionable, without
any liability to you or any third party at any time. 4.2
Modification of the Service. NoneOfTheAbove08.com reserves the
right to modify the organization, structure or "look and feel"
of the NoneOfTheAbove08.com Service or the Website, and may change,
suspend, or discontinue any aspect of the NoneOfTheAbove08.com Service or
Website at any time without any liability to you or any third party.
NoneOfTheAbove08.com shall have complete discretion over the features,
functions, prices and other terms and conditions on which the
NoneOfTheAbove08.com Service is offered to NoneOfTheAbove08.com users on
the Website. 5.
Submissions. When
you submit questions, comments, suggestions, ideas, message board
postings, material submitted via web forms, contest entries,
communications or any other information ("Submissions"), you
grant NoneOfTheAbove08.com permission to use such Submissions for
marketing and other promotional purposes, including the right to
sublicense. You agree that NoneOfTheAbove08.com will have no obligation to
keep any Submissions confidential. You agree that you will not bring a
claim against NoneOfTheAbove08.com based on "moral rights" or
the likes arising from NoneOfTheAbove08.com's use of a Submission. This
Section does not apply to your Content that you use in connection with the
Create & Buy Service or Shopkeeper Service. 6.
Representations and Warranties. 6.1
Mutual Representations and Warranties. You represent and warrant to
NoneOfTheAbove08.com and NoneOfTheAbove08.com represents and warrants to
you: (i) that you or it has the full power and authority to enter into and
perform under this TOS, (ii) the execution and performance of your or its
obligations under this TOS does not constitute a breach of or conflict
with any other agreement or arrangement by which you or it is bound, and
(iii) this TOS is a legal, valid and binding obligation of the party
entering into this TOS, enforceable in accordance with its terms and
conditions. 6.2
By You. You represent and warrant to NoneOfTheAbove08.com that, in
your use of the NoneOfTheAbove08.com Service and the Website, you: (i)
will not infringe the copyright, trademark, patent, trade secret, right of
privacy, right of publicity or other legal right of any third party, and
(ii) will comply with all applicable laws, rules, and regulations. You
further represent and warrant to NoneOfTheAbove08.com that: (i) there are
no claims, demands or any form of litigation pending, or threatened with
respect to any of your Content; (ii) NoneOfTheAbove08.com will not be
required to make any payments to any third party in connection with its
use of your Content, except for the expenses that NoneOfTheAbove08.com
incurs in providing the NoneOfTheAbove08.com Service; (iii) the use of any
instructions, formulae, recommendations, or the like contained in your
Content will not cause injury to any third party; and (iv) your Content
does not contain viruses or any other programs or technology designed to
disrupt or damage any software or hardware. 7.
Disclaimers and Exclusions. DISCLAIMER
OF WARRANTIES.
NONEOFTHEABOVE08.COM PROVIDES THE WEBSITE AND NONEOFTHEABOVE08.COM SERVICE
ON AN "AS IS" AND "AS AVAILABLE" BASIS.
NONEOFTHEABOVE08.COM MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY
IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. NONEOFTHEABOVE08.COM DOES
NOT REPRESENT OR WARRANT THAT THE WEBSITE, NONEOFTHEABOVE08.COM SERVICE OR
ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR
ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE
CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. 8.
Limitation of Liability. LIMITATION
OF LIABILITY.
NONEOFTHEABOVE08.COM WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY
DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES
(INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF
GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE
NONEOFTHEABOVE08.COM SERVICE, WEBSITE, OR THIS TOS, BASED ON ANY CAUSE OF
ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A
BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN
CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT
WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED THE
GREATER OF (i) THE AMOUNT PAID OR DUE AND OWING BY YOU TO
NONEOFTHEABOVE08.COM DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT
THAT GIVES RISE TO SUCH LIABILITY. 9.
Indemnification. You
agree to indemnify and hold NoneOfTheAbove08.com and its employees,
representatives, agents, affiliates, directors, officers, managers and
shareholders (the "Parties") harmless from any damage, loss, or
expense (including without limitation, attorneys' fees and costs) incurred
in connection with any third-party claim, demand or action
("Claim") brought against any of the Parties alleging that you
have breached any provision of this TOS through any act or omission
including, without limitation, a breach of representation or warranty set
forth herein. If you have to indemnify NoneOfTheAbove08.com under this
Section, NoneOfTheAbove08.com will have the right to control the defense,
settlement, and resolution of any Claim at your sole expense. You may not
settle or otherwise resolve any Claim without NoneOfTheAbove08.com's
express written permission. 10.
Notice. All
notices required or permitted to be given under these TOS will be in
writing and delivered to the other party by any of the following methods:
(i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you
give notice to NoneOfTheAbove08.com, you must use the following addresses:
1137 Second Street, Suite 119, Santa Monica, CA 90403,
NoneOfTheAbove08.com. If NoneOfTheAbove08.com provides notice to you,
NoneOfTheAbove08.com will use the contact information provided by you to
NoneOfTheAbove08.com. All notices will be deemed received as follows: (i)
if by delivery by U.S. mail, seven (7) business days after dispatch, (ii)
if by overnight courier, on the date receipt is confirmed by such courier
service, or (iii) if by electronic mail, 24 hours after the message was
sent, if no "system error" or other notice of non-delivery is
generated. If applicable law requires that a given communication be
"in writing," you agree that email communication will satisfy
this requirement. 12.
Dispute Resolution. All
disputes arising out of, relating to or connected with these TOS or your
use of any part of the NoneOfTheAbove08.com Service or Website will be
exclusively resolved under confidential binding arbitration held in Santa
Clara County, California, before and in accordance with the Rules of the
American Arbitration Association, by a sole arbitrator applying California
law (without regard for conflicts of law principles). The arbitrator's
award will be binding and may be entered as a judgment in any court of
competent jurisdiction. Any action to enforce an arbitrator's award will
be brought in a federal or state court located in Santa Clara County,
California. Each party hereby irrevocably submits to the personal
jurisdiction of the Federal and California State courts in Santa Clara
County. Notwithstanding anything to the contrary in this Section 12,
NoneOfTheAbove08.com may seek equitable relief, including, without
limitation, injunctive relief and specific performance, without the
requirement of posting a bond or other security or proving money damages
are insufficient, from a court of competent jurisdiction. 13.
Miscellaneous. These
TOS will be binding upon each party hereto and its successors and
permitted assigns, and governed by and construed in accordance with the
laws of the State of California without reference to conflict of law
principles. This TOS is not assignable or transferable by you without the
prior written consent of NoneOfTheAbove08.com. This TOS (including all of
the policies and other Agreements described in this TOS, which are
incorporated herein by this reference) contain the entire understanding of
the parties regarding its subject matter, and supersedes all prior and
contemporaneous agreements and understandings between the parties
regarding its subject matter. No failure or delay by a party in exercising
any right, power or privilege under this TOS will operate as a waiver
thereof, nor will any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof or the exercise
of any other such right, power, or privilege. You and NoneOfTheAbove08.com
are independent contractors, and no agency, partnership, joint venture, or
employee-employer relationship is intended or created by this TOS. The
invalidity or unenforceability of any provision of this TOS will not
affect the validity or enforceability of any other provision of this TOS,
all of which will remain in full force and effect.
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